Stanley v Georgia
394 US 557 (1969)
Transcript of Oral Argument before the Supreme Court
Jan. 14-15, 1969

The above-entitled matter came on for argument at 1:45 o'clock p.m.


EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice

WILLIAM O. DOUGLAS, Associate Justice

JOHN M. HARLAN, Associate Justice

WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

ABE FORTAS, Associate Justice

THURGOOD MARSHALL, Associate Justice


WESLEY R. ASINOF, ESQ., 3424 First National Bank Building, Atlanta, Georgia, Counsel for Appellant.

J. ROBERT SPARKS, ESQ., Assistant District Attorney,

Atlanta Judicial Circuit, Fulton County Courthouse,

Atlanta, Georgia, Counsel for Appellee.


MR. CHIEF JUSTICE WARREN: Number 293, Robert Eli Stanley versus Georgia.




MR. ASINOF: May it please the Court: I would like to request the Marshal to notify me when 25 minutes is up; I'd like to save 5 minutes for rebuttal, if I may.

MR. CHIEF JUSTICE WARREN: You will find a white light come up before you. That will be the five-minute warning.

MR. ASINOF: Thank you.

MR. CHIEF JUSTICE WARREN: Mr. Asinof, you may proceed with your argument.

MR. ASINOF: Thank you. Mr. Chief Justice, and Members of the Court:

This case involves the constitutionality of the Georgia obscenity statute. The questions raised by this appeal, insofar as the constitutionality of the statute are concerned, are twofold. First, we raise the question that the statute violates the First Amendment because it punishes the mere possession of obscene material, without requiring any further overt act on the part of the possessor, or intent to do anything with it.

THE COURT: What kind of possession was this?

MR. ASINOF: This was a possession, if Your Honor please, where Robert Eli Stanley had possession of three reels of motion picture film in a desk drawer of his upstairs bedroom of his home. There was no allegation in the indictment of any showing, or attempt to exhibit or show these films, or to pander them or show them to minors. The only question involved, insofar as the indictment was concerned, was that he possessed them knowing them to have been obscene; or that he should reasonably have known them to have been obscene.

The second question of our constitutional attack on this statute is the use of the language in the statute, and in the indictment, to the effect that "he reasonably should have known of the obscene nature of the film, " which removes the element of scienter from the definition of the offense, and thus permits the State to secure a conviction for possessing these films, on a showing of less than actual knowledge on his part that they were obscene.

THE COURT: Are they concededly obscene?

MR. ASINOF: We do not concede them to be obscene; and we took that position with the trial court then, that under the First Amendment insofar as possession itself is concerned, that there is no such thing as "obscenity." The reason that we took that position, and now take that position, is this: It would be a violation of the freedom of the press clause of the First Amendment to restrict a person, or to prohibit a person, from possessing anything they want, insofar as its claim of obscenity is concerned. We take the position that where a person merely possesses an article alleged to be obscene, and does not attempt to distribute it or show it to any other person-as was the case in this case, and as was the indictment in this case, and as by the holding by the Supreme Court that the mere possession is an offense, under the definition of Georgia law-that any evidence in the case on the part of the State, or any contention on the part of the State, to the effect that the evidence might have circumstantially shown that he was about to have a party and was about to show these films to other persons, would be completely irrelevant for this Court to consider, and has no relevancy here because of the fact that he was only charged with the mere possession.

Now, to my knowledge, this exact question has never been passed upon by this Court-the question of whether or not a person can be prohibited by the State from merely "possessing" obscene material or obscene writings or pictures. Clearly, it would seem to me that the mere possession-that anyone would have the right, say, to draw a picture which might obviously be obscene to some other person, and put it in his pocket, or put it in his desk drawer, or if he wanted to take a picture of himself, or a picture of himself and his wife in a sexual act, that this would be a matter that he could determine as long as he did not attempt to pander this material or attempt to sell it, distribute it, or distribute it to minors.

THE COURT: I suppose when the-these films were in a desk drawer, were they not?

MR. ASINOF: These films were in the desk drawer. This, of course-

THE COURT: And of course looking at the films, you couldn't tell what it was?

MR. ASINOF: You could not.

THE COURT: Well what did the officers do here?

MR. ASINOF: The officers-and I might as well mention this at the outset, right here. The second part of our contention is, the officers were armed-they were Federal and State officers-they were armed with a Federal search warrant issued by a United States Commissioner, on a claim that the defendant was violating the Wagering Tax Act.

THE COURT: The what?

MR. ASINOF: The Wagering Tax Act. Since then, of course, this Court has held that the provisions of that law are constitutionally impermissible.

THE COURT: Excuse me. What I am trying to get to is did the officers use the projector to see the films?

MR. ASINOF: Yes, sir.

THE COURT: Then and there?

MR. ASINOF: Yes, sir. Then and there. They went in, armed with the search warrant issued by the United States Commissioner, which did not call for the seizure of any obscene films but called for the seizure of gambling paraphernalia. No gambling paraphernalia was seized, except some negligible things which I think the State conceded were not sufficient, but during their search they searched through this drawer and found three cans of film-eight millimeter film-which they testified they could not discern or know, from their own knowledge, that it was or, what it was. So they found in the closet a projector and they found a screen and they showed these films, and looked at them. And after-

THE COURT: Then they set up the screen?

MR. ASINOF: Then they set up the screen, and they showed them.

THE COURT: Is there any conceivable circumstance in which, if you saw the film that-could it possibly be connected with the gambling paraphernalia?

MR. ASINOF: I would think no. I would think not. I wouldn't know that there was any connection between them.

But what happened after they showed these films-not having a warrant to seize the films-the evidence shows, in the case and in the record, that the officer-the State officer-called the Solicitor General, who is the prosecuting officer for that Circuit, and told him they didn't find gambling paraphernalia, but that they did find some films. And it is in the record that the Solicitor General then stated to him, "After you view the films, if in your opinion they are obscene, seize the films and book the case, and I'll set a bond."

THE COURT: Well, tell me. Suppose instead of these films, they had found counterfeit bills? Couldn't this fellow have been prosecuted for possession of counterfeit bills?

MR. ASINOF: I think so.

THE COURT: How do you distinguish that?

MR. ASINOF: I distinguish that, and I concede that where evidence is seized, or where contraband is seized, where it's not such as would be subject to a claim of the First Amendment freedom of the press or freedom of speech, that the states do have the right to prohibit the possession.

THE COURT: I take it that Harrison would require that, if it were counterfeit money?

MR. ASINOF: Yes, sir. I think that any case-and we concede that in our brief, and make that distinction-that in this particular case these were films alleged to be obscene, from the very start. They weren't seized as gambling paraphernalia, but they were seized under a warrant issued by the United States Commissioner, under the Wagering Tax Act, under a contention that the defendant had not registered as a gambler.

THE COURT: Was this man a merchant, or a distributor of any kind?

MR. ASINOF: No, sir. There was no claim of any distributorship. He was an individual, in his own home. The State, of course, alleged and contended that he had a record for gambling, in the past, and that Federal agents and State agents were going in for that purpose-that they had' 'probable cause," one of the contentions in the affidavit being that he had not registered as a gambler and paid his tax, which of course since then-

THE COURT: Well, in the prosecution and the actual trial for the possession of these films, was there any effort to at least prove that the possession of the films was for the purpose of sale?

MR. ASINOF: No, sir.

THE COURT: It was just naked "possession of the films"?

MR. ASINOF: This is not a-

THE COURT: There was one other point. There were biscuits in the kitchen.

MR. ASINOF: This was brought up in the brief to this Court that there were biscuits being ready to be put in the stove; that there were well-dressed people who came to the house; that this man was a bachelor and his girlfriend had come there, and that the officers had turned them away. They say that the table was set for eight people, looked like they were fixing to have supper-getting ready to have supper-and for this reason, they said that apparently he was going to have a party. This was the contention. This was the contention raised by the State, but I want to call the Court's attention to this-

THE COURT: Where was this?


THE COURT: Where was this? In Georgia?

MR. ASINOF: In Atlanta.

THE COURT: Was there any claim that this party was going to include the showing of these films?

MR. ASINOF: That's what they claim. They claim, circumstantially there's no evidence of that at all. The defendant denied knowing anything about-

THE COURT: Well, as I understood you to say, neither screen nor projector was set up?

MR. ASINOF: That's right.

THE COURT: And the films were in cans in the desk drawer?

MR. ASINOF: Upstairs in the bedroom of the defendant, in a desk drawer.

THE COURT: But you say the claim-was there any effort at the trial to show that he was going to have a party, including showing these films?

MR. ASINOF: No, sir, none whatsoever. No testimony of that, at all.

THE COURT: Well what do you do with films, normally?

MR. ASINOF: Well, I would imagine that you would show them.

THE COURT: Do you keep them as a souvenir, or show them?

MR. ASINOF: Well, I think that an individual could do as he pleases with them; but the point is that in this case-and this is the paramount thing in here that the State did not contend by its indictment that he had any intent to show them. And this was one of our grounds of demurrer in the trial court, in the State Court.

THE COURT: You mean showing them to somebody else?

MR. ASINOF: Whether there was any intent to do anything with them.

THE COURT: Or even to show them to himself? There was nothing, as I understand you-there is nothing to indicate, except that he had them in the drawer, and in the closet he had a projector and a screen?

MR. ASINOF: That's right. He could have shown them for his own use.

THE COURT: Or maybe he wasn't going to show them at all.

MR. ASINOF: Maybe he wasn't going to show them at all. He contended by his-

THE COURT: He was going to keep them as a keepsake?

MR. ASINOF: Well, he could. In his statement he said that: "I have never seen these films before," that "a man brought them to my house on Labor Day," which was about four or five days before this. But the point was that the State at no time in its indictment charged this. We demurred on the grounds of vagueness of the Georgia statute. The Georgia statute did not specifically make the mere possession an offense and we asked for interpretation by the Supreme Court, and got it. The Supreme Court construed the language to be sufficient to make the mere possession an offense. And that's why we are in this Court, because of the fact that we are reinforced by the State Court decision holding that the mere possession is an offense; and we say that gives it an unconstitutional interpretation.

THE COURT: The nub of this case appears on page 69 of the appendix, doesn't it-right at the top of the page, that one sentence?

MR. ASINOF: I believe so, Your Honor.

THE COURT: "It is not essential to an indictment charging one with possession of obscene matter, that it be alleged that such possession was with intent to sell, expose, or circulate the same."

MR. ASINOF: That's correct.

THE COURT: And that's a clear holding by the highest court of your State, that mere possession-or, as my Brother Brennan says, "naked possession" -is sufficient to constitute a criminal offense?

MR. ASINOF: That's correct. That is the holding of the Supreme Court. So the question is squarely before this Court, as to whether or not under that interpretation given to it by the supreme court of Georgia, whether or not that can be squared with the First Amendment; whether mere possession of material alleged to be obscene pictures or writings-can be constitutionally made a criminal offense.

THE COURT: To get it down a little closer, it is that naked possession-pictures of naked persons cannot be kept in a person's house, without his committing a crime?

MR. ASINOF: Under Georgia law, under the interpretation given by the supreme court of Georgia that is correct.

THE COURT: What did this fellow get, a year?

MR. ASINOF: Yes, sir. He received a year's punishment in prison. That was fixed by the jury, and it was under the charge of the court. Of course under Georgia law, peculiarly, the jury fixes the punishment; and under the charge of the court, the court charged the mere possession as being-that that's all they had to consider- together with either that he had knowledge that they were obscene, or that he should reasonably have known of its obscene nature. Now this gets to the scienter question of whether or not a state can withdraw the element of scienter by permitting a conviction to rest upon less evidence than actual knowledge that it is obscene.

THE COURT: Has your client been out on bail?

MR. ASINOF: Yes, sir, he's been out on bail.

And the second question involved in this case, as I've stated, is that this Court has held in Grosso and Marchetti since this case was tried, that the Wagering Tax Act is constitutionally unenforceable. Now this holding by the Court renders, we say, the search warrant that was issued in this case invalid. We filed a motion to suppress in the trial court. In our motion to suppress-

THE COURT: When was the search warrant issued?

MR. ASINOF: The search warrant was issued before the Grosso and Marchetti decisions. It was issued in 1967, but it was about-it was some months before Grosso and Marchetti. But we filed a motion to suppress evidence, and in our motion the allegation was made that the films were seized without a valid search warrant, particularly describing the articles to be seized. That language, we say, is sufficient to now reach back as of that time and say that that was a sufficient attack upon the warrant itself.

THE COURT: Do you argue at all that even if the warrant was valid, and even if Marchetti and Grosso weren't retroactive, that nevertheless the search was invalid because the warrant described gambling paraphernalia, and they nevertheless seized a film which-it isn't like just running across contraband that is lying out in plain sight, you have to actually look into the film to see what's in it?

MR. ASINOF: Not only look into the film-

THE COURT: Do you make that argument?

MR. ASINOF: Yes, sir. Not only look at the film, but there had been no-this requires, on the question of obscenity, it would require at least the finding of a magistrate to determine that these films were obscene. In this particular case, the evidence is clear that this officer called the Solicitor General and asked the Solicitor General what to do, and he told him, "if in your opinion they're obscene, seize the films and make a case and I'll set the bond."

Now we say that this would require, before a film or a picture or a photograph or anything else can be considered to be obscene, there must be some judicial finding, some notice, some knowledge, that these films have been declared to be obscene-at least that much. And we say, for that reason, that even though officers would be authorized to seize contraband not named in the article, that they would not be authorized to seize films alleged to be obscene; that the Solicitor General himself had no judicial powers under the law of Georgia, had no right himself to have seized the films; but that in this case he delegated some sort of judicial power to the officer making the finding and told him, "if in your opinion they're obscene"

THE COURT: I take it you're relying on Marcus, aren't you? You're relying on Marcus?

MR. ASINOF: Yes, sir, the Marcus case.

THE COURT: Marcus involves, as I recall it-didn't it? -A warehouse full of books, of which there were six or seven that the police had purchased? And there, on the basis of police examination of the books, they issued a warrant?

MR. ASINOF: That was under the Missouri statutes.

THE COURT: And we said that they had to have a determination in advance; but isn't this a little different? Here you have just a single item. Just how would you get the film to have a determination of obscenity, before a search warrant issued? How would you get it?

MR. ASINOF: Well, if the Solicitor General had instructed the officer to "submit your facts to a magistrate, and if he"-

THE COURT: What facts? He would have to take the films, wouldn't he?

MR. ASINOF: No. He could, by affidavit, submit to a magistrate who was authorized to issue a warrant-he could submit what these films revealed to him.

THE COURT: According to another argument, he wasn't even entitled to look at them.

MR. ASINOF: That's right. He was not even entitled to look at them-which of course is, again, the question-but we say that under either one of these theories, the seizure of the films was illegal.

THE COURT: Well, it wouldn't be obscene unless it lacked some socially redeeming value, as I understand it, and you couldn't tell that unless you saw it.

MR. ASINOF: Of course, Your Honor, that's true; but I think that's something that has been the subject of discussion for many, many years, as to whether or not an item does have redeeming social value, or whether or not it could be classified as obscene.

THE COURT: Were these movies shown at the trial?

MR. ASINOF: Yes, sir, the movies were shown at the trial.

THE COURT: It was a jury trial?

MR. ASINOF: Yes, sir.

THE COURT: Are they here?

MR. ASINOF: Yes, sir, I think this Court has them. And I would say this, that of course I think-and I would concede to this Court-that the pictures-the films, insofar as films are concerned-I think they are disgusting. But I don't know that "disgusting" makes them obscene. I don't know that they would appeal-they wouldn't appeal to my prurient interests. I don't know whose prurient interests they would appeal to because I think that they're sickening, but I don't think that they're any more sickening than it would be to show a man being tortured to death, and having his guts torn out of him; but that wouldn't be obscene. It's really hard to say what obscenity is, but getting right to the point in this case, we say that if they are the vilest, the filthiest pictures that could ever be seen, that a person has the right to possess them, as long as he has not-and this is what this Court held last year in Redrup, and the other cases along with Redrup-that as long as there is no pandering, as long as there is no exhibition to minors, and as long as there is no intrusion upon the privacy of other persons who are unwilling to see them, then of course we have nothing. And this is all we have in this case, unless we want to accept the State's theory that because there were some biscuits being prepared to be put in the stove and because of the fact that the table was set for eight, where they were going to have dinner-and against the statement of the defendant in the trial on the case with nothing to refute that, that a man had brought these films to him several days before and told him, said "I have some films that I'd like you to see."

Now we say this, if the Court please, that wherever we find that a question of obscenity is concerned, or whether or not we know that something is obscene, if A tells B, "I have some pictures I want to give you, and these pictures are obscene," does that say that B cannot determine or ascertain for himself whether they are obscene to him? Or does that mean that he would have the right, himself, to inspect those films and say, "I have a right, under the First Amendment, to determine whether"-

THE COURT: Well, you don't have that case here. Why argue that case?

MR. ASINOF: Well that is what it would actually-

THE COURT: All you have here, as I understand it, assuming any obscenity in these films, is a question of whether the possession and nothing more-not for sale or otherwise-but just the possession, of itself, constitutionally can be made a crime under the First Amendment. Isn't that what it is?

MR. ASINOF: That's right. And that's why I say, if Your Honor please, that because of that a man has the right to determine for himself if it offends him-if, to him, it's obscene-because it would violate the First Amendment to say that if a man handed me some film-

THE COURT: Incidentally, is there anything in this record to show that he had any knowledge as to what these films were?

MR. ASINOF: None, whatsoever, except the fact that they said-an expert testified that the films had been scratched; one of them was wound backwards, to show that someone had seen them at some time in the past; but nothing to show that he had seen them, or he had ever viewed them, and there's nothing to refute or rebut his statement that he had never seen them before.

THE COURT: Were they in his trunk upstairs, or bureau drawer?

MR. ASINOF: In the desk drawer of his bedroom upstairs-and there was no setup, nothing set up, no screen set up to show these, or view these films.

THE COURT: The difference between this and the Wilkes case which was tried a long time ago is that there they found the paper at the bottom of his trunk, and here they found it in the desk drawer, and they turned him loose.

MR. ASINOF: I think that that would be analogous. So I would like to reserve what time I have left. I know the white light hasn't come on, but I would like to reserve, if I may, the time for rebuttal.

MR. CHIEF JUSTICE WARREN: You may. Mr. Sparks?


MR. SPARKS: May it please the Court: I am the trial counsel who prosecuted this case in the court below-the Superior Court of Fulton County-so the Court has the original trial counsel. Mr. Asinof was the defense counsel. Now, I want to point out several things to the Court which I think Mr. Asinof neglected to point out, because he was so wrapped up in his own argument-one is this. On the question of whether or not this Georgia statute contains the element of scienter, I want to point out to the Court that the supreme court of Georgia ruled on that, in this very case. The court said-and I'm just reading in part, just a line-"It is contended that the requirement of reasonable knowledge would withdraw the element of scienter from the definition of the offense and would render a person guilty, without actual knowledge of the obscene nature of the matter. This contention is without merit."

Now, Your Honors, as we have pointed out in our brief, this Court has consistently held that where a State statute is interpreted by the highest court of its State, that this Court is bound by the construction placed on it by that court. That happened in the Mishkin case-another obscenity case with which the Court, of course, is familiar-and also in the last Ginsberg case. Now in the last Ginsberg case, the New York statute which defined knowledge as this, "knowingly possess obscene matter," the New York statute defined "knowingly" as "having general knowledge of, or reason to know"-the exact same words that are in the Georgia statute-"or reasonably should know, or a belief or ground for belief which warrants further inspection or inquiry."

In other words, in the Ginsberg case-and that's the G-i-n-s- b-e-r-g case, there being two Ginsberg cases in the obscenity field-this Court accepted the construction placed on the scienter feature of the New York Statute, and said: "as we are bound to do."

Now the Georgia supreme court said in response to Mr. Asinof's contention about that language of the Georgia statute, "If such person has knowledge, or reasonably should know of the obscene nature of the matter" -does not remove scienter from the offense, but is merely a statutory expression of the rule of evidence which has been extant in Georgia courts for many years. That is, the only way you can prove intent or knowledge of a person, as to anything-as to whether goods are stolen, or of any element involving intent or knowledge unless he confesses-is by the circumstances: "as to whether a reasonable man, in the same position, would know or would have knowledge of the obscene nature."

So we submit-I submit, very respectfully, that by a long series of this Court's own decisions, that you cannot go beyond, or reverse, the judgment of the Georgia supreme court on this question of scienter, because that is a State court interpreting its own statute. And I have cited a number of cases where this Court has said that "we are bound by such expression." This Court also said it in the Mishkin case. It said it in the Kingsley International Picture Corporation case-in about eight cases, Aero Transit, all of which are listed in our brief.

So, that moves us on to the second facet of the attack on the constitutionality of the statute. I submit most earnestly to the Court that scienter is an element of this offense as interpreted by the Georgia court-by the Georgia supreme court-and that this Court cannot, unless you reverse your prior rulings which are set out in our brief and which I've cited to you-unless you reverse that long line of cases, I don't believe the Court, in keeping with its precedents, could just say "We think the Georgia court was wrong when they said that this statute does not contain the element of scienter."

THE COURT: What was the State's evidence on scienter-to prove scienter?

MR. SPARKS: It was circumstantial, Your Honor, but we think it was sufficient. These officers went in with a Federal search warrant to seize wagering paraphernalia. This man was alleged to have been a notorious bookmaker with a prior record of arrests and a conviction.

THE COURT: I suppose that wouldn't have any connection?

MR. SPARKS: That wouldn't have any connection with this case, but I was pointing out the "probable cause" we had.

THE COURT: No. I am interested in how you brought evidence, and what evidence there was, upon which the jury could find that he "knew" the contents of these motion pictures.

MR. SPARKS: One of the cans bears the label "Young Blood" on it, which is certainly a suggestive title. It's a homemade label. I gather from what the Court has said that the Court hasn't viewed these films. They are here and I have asked the Court-

THE COURT: I would still like to know, if you don't mind, what the evidence was that brought home to him "knowledge" of the contents of those movies?

MR. SPARKS: Well the evidence showed, Your Honor, that in the upstairs living room there was a projector set up, and a bunch of innocuous films, slides, travelogues, things like that-these films were not found with the other films, the innocuous or innocent-type films, but they were found in a desk drawer underneath some papers, in his private bedroom. The officers ran them, threw them against the wall, and then went downstairs and told him, "We are arresting you for the obscene films that were found upstairs. "

THE COURT: Well why did they show the films? They were looking for what-the search warrant was limited to what? And with that, why did they want to look at a film?

MR. SPARKS: Your Honor, Mr. Justice Marshall, I think that they wanted to look at the films for the reason that the films might have been a record. They were authorized to look for bookmaking records, and it's not inconceivable that-

THE COURT: Would he have them in a tin can marked "Young Blood"?

MR. SPARKS: He could. That's just like the old "Purloined Letter" scheme-Edgar Allen Poe, the story about putting something in the most conspicuous place.

THE COURT: I assume the policemen read Edgar Allen Poe?

THE COURT: And as soon as they saw the first film-the first frame-you thought you were still looking for records?

MR. SPARKS: No, sir, but there were three cans.

THE COURT: They ran through all three, I take it?

MR. SPARKS: They didn't show all three of them, Your Honor. The record shows that they only showed a few feet of the second and third one. In fact, one of the films had been rewound backwards-which shows recent viewing-and the pictures were shown upside down.

THE COURT: Now you were going to tell us that he went downstairs, and I gather you were going to tell us that he met the defendant-the officer did?

MR. SPARKS: He went downstairs and met the defendant, and told the defendant that "I'm arresting you for those obscene films upstairs." The defendant said nothing-of course I don't claim that-you can't use his right to remain silent against him; that's a constitutional right. But it would still seem more logical to say, "What films?" if he didn't know that he had any obscene films; but of course-

THE COURT: All right. But so far all you've got is that he said nothing?

MR. SPARKS: Yes, sir.

THE COURT: Now what else have you got? The officer said to him, "I'm going to arrest you for those obscene films." The defendant said nothing.

MR. SPARKS: He said, "Let me call Mr. Asinof," and he did call Mr. Asinof.

THE COURT: Now does the fact that he called his lawyer indicate that he knew what those films were?

MR. SPARKS: No, sir, but there is his own statement. He made a statement on the trial. Georgia has the unsworn statement law where defendants can either be sworn or make an unsworn statement. This is what he said-and while it is not an admission, it still is significant, I think; it's very brief. He said: "I'm a bachelor, and I live by myself, and I have a girlfriend. We planned a party for Labor Day. I invited several couples out. Later on in the evening a friend of mine came by and said, 'I brought you something I want you to see.' He handed it to me. It was three rolls of film. I took the film upstairs and put it in the desk drawer, closed the desk drawer, and came back downstairs." Then he goes on to say he never looked at it.

However, there were-two people were in the backyard when the officers made the execution of the search warrant-two men. Three women came over later that evening-well-dressed women. There was Justice Marshall's three dozen biscuits sitting on the stove. All the indications were that there was going to be a party, and in fact he told the jury that he was going to have a party. And in that connection, in the context of his statement telling about the party first, and a friend bringing the films by, and saying "I want you to see them," I think it's a reasonable deduction that the jury could have drawn, that the films were to be shown at the party.

THE COURT: Well is there anything in what you've told us that would support an inference that he had looked at the films and knew what they were?

MR. SPARKS: Only-one of the Federal agents was a former professional photographer, Your Honor, and he testified that the films were badly scratched; that they were dirty; that one of the films had been wound backwards which caused the figures to project upside down on the wall when they showed it; and he said that they had obviously been used before-been shown before, many times.

THE COURT: Many times, did you say?

MR. SPARKS: I am not certain whether he used the word "many," or not. I know that he said that they had obviously been shown before; that they had seen-I believe he said that they had seen "extensive use." I could find that for you.

MR. CHIEF JUSTICE WARREN: We'll adjourn now.

[Whereupon, at 2:30 o'clock p.m., the hearing in the above entitled matter was recessed, to reconvene on Wednesday, January 15, 1969, at 10:00 o'clock a.m.]

Washington, D.C.
Wednesday, January 15, 1969 

The above-entitled matter came on for further oral argument at 10:10 o'clock a.m.

MR. CHIEF JUSTICE WARREN: Number 293, Robert Eli Stanley, Appellant, versus Georgia. Mr. Sparks, you may continue with your argument.




MR. SPARKS: Mr. Chief Justice, and Honorable Justices: At the recess yesterday afternoon I was just completing my response to questions by Justice Douglas-excuse me, not Douglas, Brennan-as to the evidence of scienter. And I had practically completed a summary of the circumstances, which we feel justified the jury to find that this defendant knew all of the obscene nature of the matter. I just want to elaborate in one respect.

THE COURT: You aren't arguing that, are you? That he knew it was obscene? You're just arguing that he knew the contents of the films?

MR. SPARKS: That's right, the "contents" of the film-that he knew the contents of the film-or of the obscene nature of the film. That is the way the Georgia statute reads, I believe.

I just want to point out two things in relation to his statement and then I will move on to something else. In his unsworn statement, when he attempted to explain his possession of the films in a manner consistent with lack of knowledge of the contents-and I submit that it was an unreasonable explanation-it was somewhat unreasonable, in two respects.

First, he said that a friend brought the films by and left them with him, saying that he wanted the appellant to view the films. I submit that it's somewhat unreasonable that films would have exchanged hands, without some explanation on the part of the unknown friend, or some query on the part of the appellant as to what kind of films are they-particularly the small, eight millimeter films in the can with the home-made label. I feel quite sure that if anyone came to me and said "I've got some films I want you to see" I'd say, "Well, what are they? Films of your fishing trip, or your family, or-"

THE COURT: Well what if you asked him, and he said, "They are films about girls."?

MR. SPARKS: Then I think-

THE COURT: Would you know, or would you have any real clue, that they were "obscene" films?

MR. SPARKS: I think that would warrant further inquiry, Justice White.

THE COURT: That may be, but what evidence is there that there was ever any "further inquiry," or any further investigation as to what the films were about?

MR. SPARKS: There is no evidence because, of course, this was an unsworn statement and the State was not allowed to cross-examine him or go into it without his consent, unless he voluntarily submitted himself to cross-examination.

THE COURT: The State has the burden of proof, doesn't it?

MR. SPARKS: Yes, sir. The State had the burden of proof, Your Honor. But I think this is both Federal and State law, as I recall from my days as an Assistant U.S. Attorney, that where the defendant goes ahead with an affirmative defense, then not the burden of "proof," but the burden of making a "reasonable explanation," shifts to the defendant.

And that leads me to my next point. And that is, that he did not identify his friend. He neither produced him, nor identified him by name.

THE COURT: In that statement he also said "I never saw the films before today, and never had shown them to anyone, so help me."

MR. SPARKS: Yes, sir, that is true. And I want to point out, in that connection, before I pass from this subject, the case of Smith v. California, which this Court decided, in which the defendant was convicted for the offense of bare possession of obscene matters, under California ordinance, which had no element of scienter in it as interpreted by the California Supreme Court. And the Court said, in an opinion by Mr. Justice Brennan: "We might observe that it has been some time since the law viewed itself as impotent to explore the actual state of a man's mind. Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial."

And I submit that those quoted words are pretty analogous to the facts in this case. We are relying on the circumstances. We have no direct evidence that he saw-that he even knew what the films were. But we submit that all of the circumstances: the impending party, the films concealed, the title "Young Blood," is rather inadequate explanation-

THE COURT: I'm really interested. How does that title suggest anything? I don't get this "Young Blood." What's that suggest? Or is it my age? I don't know.

MR. SPARKS: Well, I think it suggests sex, Your Honor. We normally associate sex with young blood-with young people.

THE COURT: I guess it is my age.


 MR. SPARKS: I want to pass on to another point. I gathered yesterday from the questions asked my worthy adversary, Mr. Asinof, that this Court has not yet viewed the contents of the films, which were transmitted to the Court, by the direction of the Georgia Supreme Court. I wish to most respectfully and humbly urge this Court to view the films before ruling on the case.

THE COURT: Do you think we have to view the film, if there are-do you think we have to view the film, if there are constitutional bases that don't relate to the subject matter of the films, for disposing of this case-such as the question of mere possession, or the search and seizure question? Why would you want us to view the films?

MR. SPARKS: I was fixing to-that was going to be my very next statement, as to the legal reasons why I feel that the films should be viewed.

THE COURT: Even if we think that you can dispose of this case-must dispose of the case-on the possession ground, or the search and seizure Fourth Amendment grounds?

MR. SPARKS: Yes, sir, I do for this reason-

THE COURT: All right. Tell me why.

MR. SPARKS: This Court, or the majority of this Court, has consistently held in obscenity cases from Roth on through Jacobellis, Mishkin, Ginsberg, even Redrup I believe, and the last Ginsberg case in 1968, that obscenity is not protected by the First Amendment to the Constitution. And if the Court views these films and finds that they are not only-that they are not borderline obscenity, but hard-core pornography-

THE COURT: You mean, if this is obscene we should not reach the Fourth Amendment question?

MR. SPARKS: Should not reach the First Amendment question.

THE COURT: The Fourth Amendment question of search and seizure?

MR. SPARKS: Oh, no, sir. I'm not saying that. I think-as a matter of fact, I am not absolutely certain, Justice Stewart, that the search and seizure question is actually before this Court.

THE COURT: I'm Fortas. This is Stewart (Indicating).

MR. SPARKS: Excuse me. I'm sorry. Search and seizure is not an appeal able question. The Court noted probable jurisdiction without restricting the question to the only appeal able question, which is the constitutionality of the Georgia search and seizure-I mean, the constitutionality of the Georgia Obscenity Act. And the same thing happened in the Mishkin case, and the Court dismissed. They said that the search and seizure question was properly briefed by both parties, and then declined to pass on it, and said that probable jurisdiction had been erroneously noted, as far as that's concerned. However, I do feel that the Court would have to pass on the search and seizure question, but right now I'm addressing myself to the constitutionality of the Georgia statute.

THE COURT: Well, I understand that, but I want to be clear on one matter with respect to your position.

MR. SPARKS: Yes, sir.

THE COURT: Now here are some allegedly obscene films. I haven't seen them, but if I should decide that this case must be reversed on the possession point, or on the search and seizure point-Fourth Amendment point-I would not consider it, as presently advised, I would not consider it necessary to endure a sight of motion picture films whatever their content may be. Do you consider that you disagree with that present thought of mine?

MR. SPARKS: I disagree with it, Your Honor, as far as the First Amendment ground is concerned.

THE COURT: I'm not talking about the First Amendment. I'm talking about the two points that I'm talking about, namely the possession and the manner of seizure, which are Fourth Amendment points.

MR. SPARKS: Your Honor, I feel that the-

THE COURT: And maybe the possession is a First Amendment point, in a sense, but not in the sense that you're talking about. I take it you're talking about-

MR. SPARKS: Well, the appellant is asking this Court to declare a mere possession count-I say mere possession with scienter count - unconstitutional.

THE COURT: But if we should conclude that a statute making mere possession a criminal offense is unconstitutional under the First Amendment, regardless of the nature of the films, then it obviously wouldn't be necessary for us to see the films, would it?

MR. SPARKS: Your Honor, I take the reverse position. I say that you should see the films, and if they are hard-core pornography and outside the protection of the First Amendment as this Court has held in Roth and a whole series of cases, then it would not be necessary-

THE COURT: No. But I say, assuming that we felt-assuming that I should conclude, that insofar as I'm concerned, mere possession cannot be punished as a crime regardless of how obscene the film might be, then it would follow that there'd be no point in my seeing the film. Isn't that right? I mean that seems to me to follow as a matter of course.

Now I know your position is that if the film is obscene, mere possession can be punished. But I say that if I disagreed with that, then obviously it would not be necessary for me to endure a sight of this film-I'm not characterizing it as obscene. I don't know whether it is or not, but it probably is not one of the greatest works of art that's ever been struck by the hand of man.

MR. SPARKS: That's an understatement, Your Honor.

THE COURT: Your real point is, isn't it, that appropriately some of these questions might be judicially resolved?

MR. SPARKS: Yes, sir, that's correct. That's what I mean.

THE COURT: I hope you're going to address yourself to the constitutionality of this statute: mere possessions, without any purpose to exhibit, sell, or display?

MR. SPARKS: Yes, sir, that was going to be my next point. To the best of my knowledge and research, and I believe-

THE COURT: Let me ask you, before you do that, as I read the record it seems to me that the only time it's established in the evidence that the picture has been displayed in Atlanta was when it was displayed in the prosecuting attorney's office to a group of people. Is that right?

MR. SPARKS: That is the only evidence that it has been displayed in Atlanta. I recall that Your Honor asked me-

THE COURT: Didn't the police look at it where they found it?

MR. SPARKS: Yes, sir. You're right, sir. Thank you. They looked at it in the appellant's home.

And yesterday, Justice Black, you asked me about what the expert photographer said. He said that the films are badly scratched and dirty. They are not in new condition at all. That's where I mistakenly said that they had seen "extensive use." "They are not in new condition at all. One reel was rolled backward and never rewound after a showing of the film." And he says, "Yes, sir, they obviously had been shown before."

THE COURT: But where in the record does it say they were shown in Georgia before? It doesn't say it at all. It says they were shown "some place" before.

MR. SPARKS: That's true, sir, Your Honor. We didn't have any eyewitness who watched this appellant show the films.

THE COURT: And the undisputed evidence was that the appellant had barely come into possession of these films that very day.

MR. SPARKS: That was not evidence, Your Honor. That was in the form of an unsworn statement.

THE COURT: Well, you've been talking about it, though, as the basis for much of your argument.

MR. SPARKS: Yes, sir. Under Georgia law, the jury can pay what attention to it wants to. It can either disregard it, or-

THE COURT: Well are you suggesting that we should disregard that statement entirely?

MR. SPARKS: I'm suggesting that the Court should consider it, and consider its deficiencies.

THE COURT: Well, if we do then we know that he had "barely come into possession of the films."

MR. SPARKS: Well I'm not saying that the Court should believe it all, in its entirety, because the natural thing for him to have done was-if that's true-was to have brought the person into court, or at least named him, so that the prosecution could have brought him into court.

I have only a couple of minutes left, and I haven't addressed myself-

THE COURT: Do you really mean "bring him to court"? Well, you would have arrested him, wouldn't you, because he would have admitted that he had possession of these films?

MR. SPARKS: It's entirely possible, unless he denied it. He might have said, "No, sir. I don't even know Bob Stanley; never saw him before, and certainly I didn't give him any films." Then we would have made a State's witness out of him and proven that the defendant made a false statement in his unsworn statement.

On the question which Justice Harlan asked me to address myself to, on the constitutionality of the possession statute: I really see no reason why a possession statute making hard-core pornography obscene cannot be constitutionally enacted by a state. States have many possession statutes, and the Court knows them as well as I do-possession of stolen goods, possession of concealed weapons without having licenses for them, possession of narcotics, possession of dangerous drugs, possession of burglary tools. The Federal Government has many possession statutes: possession of a car-stolen car, transported in interstate commerce, possession of money taken in an FDIC bank robbery, many possession statutes. And even during Prohibition days, bare possession of intoxicating liquors of any type was an offense. And I see no reason why the possession of hard-core pornography should not be made an offense. And I know of no case in which-I think this is a case of first impression before this Court-I have not been able to find a case exactly in point. .

Now in the Smith case, which this Court admittedly reversed, but only because there was no scienter, it seems to me that the opinion which I've quoted from once before indicates, or implies, that had the California ordinance had the element of scienter in it, that it would have been constitutional because-Mr. Justice Brennan said this-"We need not, and most definitely do not, pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock."

THE COURT: "For sale."

MR. SPARKS: That is the-

THE COURT: "For sale." What's bookseller mean?

MR. SPARKS: Yes, sir. But, Your Honor, the California ordinance did not have any element of carrying it in stock "for sale." It just said "possession." Absolute liability-absolute criminal liability.

THE COURT: But that case did involve a bookseller.

MR. SPARKS: It did involve a bookseller, but-

THE COURT: It involved a prosecution, for having books for sale, didn't it?

MR. SPARKS: I can't see, honestly, where the First Amendment grounds hit this particular case. This man is not a bookseller. He was suspected of being a bookmaker, rather than a bookseller. Now he was not intending to sell these films, so far as the available evidence indicates. The general public was not deprived of the right to look at the films.

Now the Georgia Supreme Court, in distinguishing this case from the Marcus case, said as much in its opinion. It said that the Marcus case, on the search warrant-it said that that case involves freedom of the press and freedom of speech. This case does not. And I don't think this case involves-under the facts of this case, this is just an individual. He is not being deprived of his rights- the public, I should say, is not being deprived of the right to view his films. I see I have the red light.

I might just say this, if I might be allowed one more sentence.

I feel that a possession statute is necessary for effective law enforcement from the very type of evidentiary problem which has been pointed out by questions from this Court. If you catch a man with the pornographic material, how are you going to prove that he has read it, or that he has looked at it, or that he intends to sell it? You can stop pornography at its source, and I earnestly submit that this is the hardest type of hard-core pornography that this Court has ever had before it.

MR. CHIEF JUSTICE WARREN: Thank you very much. Mr. Asinof?




 MR. ASINOF: May it please the Court: With respect to Smith v. California, that prosecution involved a bookseller, under an ordinance providing or referring to booksellers; consequently, the "sale." We're dealing with a person there who is in the business of "selling books."

THE COURT: Give me your view of how you would argue the possession point, accepting the fact that the Court has said that obscenity is not protected by the First Amendment.

MR. ASINOF: In the Roth case where that principle was established, we find that the Roth case was a question of distribution.

In an instance where an individual who possesses something that we'll admittedly say is pornographic, the Constitution does not protect him from the distribution; and this is followed in the Redrup case.

THE COURT: Yes, but the case says the obscenity isn't within the First Amendment.

MR. ASINOF: That's correct, but the case was dealing with the question of the distribution.

THE COURT: But you mean that obscenity, in the course of distribution, is not protected? And obscenity, in possession, is protected?

MR. ASINOF: That's correct. The case did not hold that bare possession, or mere possession, was not protected. The Court said in Roth that obscenity was not protected, but-

THE COURT: The material doesn't change any, so what is the critical fact? The material, whether its "distributed" or not, is the same. And it either is or isn't protected by the First Amendment So what is different between "possession" and "distribution"? What should you really focus on?

MR. ASINOF: Well, in the distribution, you're dealing with the question of furnishing it to others. And the mere possession in the privacy of your own home where no one else has seen it, where there's no evidence that anyone else has-or no one else is intended to come into contact with it-I say that no case holds that it is not protected-that an individual cannot take a picture of his own obscenity and for posterity, for himself, if he so chooses, because to do so-to prohibit a person from possessing it would in itself violate First Amendment rights.

THE COURT: Well what do you say to your adversary's argument that the State, constitutionally, can say "We'll nip this business in the bud," given hard-core pornography or whatever you want to call it. What do you say about that?

MR. ASINOF: That, in itself-that, in itself, would be a violation of the First Amendment. To say that a person could not write what he wants in his own diary-let's say that he's going to keep for his own personal future in his own drawer, not to be shown to any other persons-we say that the First Amendment is an absolute amendment that gives a man the freedom of the press, and the freedom of the press carries with it the freedom of motion picture films.

THE COURT: But the Court has held-at least the majority has held-that it is not an absolute right in the obscenity field.

MR. ASINOF: But that was held in the Roth case, Your Honor, and the Roth case involved-

THE COURT: But what your adversary is saying is that the State can legitimately-again, on the premise that what's involved here meets the Roth test-

MR. ASINOF: Then we come into the Redrup case.

THE COURT: -can nip it in the bud.

MR. ASINOF: Well then, we come into the Redrup case, which was decided since Roth. And this Court last year in Redrup and the other cases that went with it, reversed on the theory and on the principle, that there had been-that this was not a case involving one of the three elements: either distribution to minors, distribution to persons who are unwilling to see it, or "pandering," as was held in Ginsberg. Now if we accept Redrup as being the law, then of course we must take Redrup and Roth together, as they both hold and say that obscenity insofar as its mere possession and bare possession-and I use that expression- insofar as the bare possession is concerned, would be protected by the First Amendment because there you are not intruding upon the privacy or the rights of others to be free from this stuff.

Now in the finding-one thing I would like to answer my opponent with respect to, he says that the State Court found that the State statute did not remove the element of scienter. Now the rule as I understand it is that this Court will accept an interpretation placed upon a State Court, as to a non-Federal ground; but as to a Federal constitutional ground, this Court is not precluded by virtue of a holding of a State Court on a constitutional issue from reversing that State Court, because this is the final arbiter- this Court is the one that must decide the Federal ground.

Now, secondly, in the brief of the appellee, on page 45, he cites the case of Rainwater v. Florida, which was decided by this Court during the last term. The Rainwater v. Florida case was one that originated in the State Court. There was a Federal search warrant issued under the Wagering Tax Act. They seized certain items from the defendant's possession, and they prosecuted him in the State Courts. This Court remanded that under the theory of Grosso and Marchetti-remanded it back to the State Court for further proceedings, not inconsistent with Grosso and Marchetti.

This is identical to the case we have here. The State says in its brief that they’re the prosecution in the State Court was the end result of the issuance of the Federal search warranted. That's what we have in this case. This prosecution for obscenity was the end result of the issuance of the Federal search warrant, which actually, under Rainwater v. Florida doctrine, was inadmissible as having been unconstitutionally obtained.

THE COURT: To get back to this possession point, under the State law assuming that possession were a crime-mere possession was a crime, and not barred by the First Amendment-could the State get out a search warrant to search your own library, on the basis of an affidavit that would say that you have in the library a copy of James Joyce's Ulysses, a copy of this book and that book, and that there was-and therefore, they get out a search warrant to examine your entire library?

MR. ASINOF: I would not think so. I would not think-I think that the Constitution-the Fourth Amendment-says that the warrant shall particularly describe the articles to be seized.

THE COURT: In other words, they'd have to name the specific book?

MR. ASINOF: That is my view of that Amendment.  Now one point that was raised by my adversary, he says that the evidence in the case indicated that one reel of film had been wound backwards, or was "scratched," and that that would indicate that someone had previously viewed that film. But it would not show, and we submit to this Court that that fact alone could not, and would not show that this defendant, or this appellant, had ever viewed it.

Now in conclusion, I would like to state that since my opponent has-or my adversary-has suggested to this Court that this Court view the film, he has in effect stated that "How does this Court know that they are obscene, without viewing it." Now, that is our very position in this case. We say that with respect to the appellant, the same position holds true. If he has never viewed the films, he would not, obviously, know that they are obscene because without viewing them you cannot learn of its obscenity. And that is the point that we have in this case. We say that since the evidence doesn't show that he ever viewed the films, that therefore there is no evidence that he knew, or could have known, that they were obscene.

Thank you.

[Whereupon, at 10:40 o'clock a.m., the argument in the above-entitled matter was concluded.]

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