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,
Counsel for Appellee.
Number 293, Robert Eli Stanley versus Georgia.
ORAL ARGUMENT OF WESLEY R. ASINOF, ESQ.,
ON BEHALF OF APPELLANT
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.
ASINOF: Thank you.
Mr. Asinof, you may proceed with your argument.
MR. ASINOF: Thank you. Mr. Chief Justice, and Members of the Court:
constitutionality of the Georgia obscenity statute. The questions
this appeal, insofar as the constitutionality of the statute are
twofold. First, we raise the question that the statute violates the
Amendment because it punishes the mere possession of obscene material,
requiring any further overt act on the part of the possessor, or intent
anything with it.
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.
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
have known of the obscene nature of the film, " which removes the
of scienter from the definition of the offense, and thus permits the
secure a conviction for possessing these films, on a showing of less
actual knowledge on his part that they were obscene.
ASINOF: We do not
concede them to be obscene; and we took that position with the trial
then, that under the First Amendment insofar as possession itself is
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
the freedom of the press clause of the First Amendment to restrict a
to prohibit a person, from possessing anything they want, insofar as
of obscenity is concerned. We take the position that where a person
possesses an article alleged to be obscene, and does not attempt to
it or show it to any other person-as was the case in this case, and as
indictment in this case, and as by the holding by the Supreme Court
mere possession is an offense, under the definition of Georgia law-that
evidence in the case on the part of the State, or any contention on the
the State, to the effect that the evidence might have circumstantially
that he was about to have a party and was about to show these films to
persons, would be completely irrelevant for this Court to consider, and
relevancy here because of the fact that he was only charged with the
Now, to my
exact question has never been passed upon by this Court-the question of
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
the right, say, to draw a picture which might obviously be obscene to
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
did not attempt to pander this material or attempt to sell it,
or distribute it to minors.
I suppose when
the-these films were in a desk drawer, were they not?
ASINOF: These films
were in the desk drawer. This, of course-
And of course
looking at the films, you couldn't tell what it was?
ASINOF: You could not.
Well what did
the officers do here?
officers-and I might as well mention this at the outset, right here.
part of our contention is, the officers were armed-they were Federal
officers-they were armed with a Federal search warrant issued by a
States Commissioner, on a claim that the defendant was violating the
ASINOF: The Wagering
Tax Act. Since then, of course, this Court has held that the provisions
law are constitutionally impermissible.
Excuse me. What
I am trying to get to is did the officers use the projector to see the
ASINOF: Yes, sir.
Then and there?
ASINOF: Yes, sir. Then
and there. They went in, armed with the search warrant issued by the
States Commissioner, which did not call for the seizure of any obscene
but called for the seizure of gambling paraphernalia. No gambling
was seized, except some negligible things which I think the State
not sufficient, but during their search they searched through this
found three cans of film-eight millimeter film-which they testified
not discern or know, from their own knowledge, that it was or, what it
they found in the closet a projector and they found a screen and they
these films, and looked at them. And after-
Then they set up
ASINOF: Then they set
up the screen, and they showed them.
Is there any
conceivable circumstance in which, if you saw the film that-could it
be connected with the gambling paraphernalia?
ASINOF: I would think
no. I would think not. I wouldn't know that there was any connection
they showed these films-not having a warrant to seize the films-the
shows, in the case and in the record, that the officer-the State
the Solicitor General, who is the prosecuting officer for that Circuit,
told him they didn't find gambling paraphernalia, but that they did
films. And it is in the record that the Solicitor General then stated
"After you view the films, if in your opinion they are obscene, seize
films and book the case, and I'll set a bond."
Well, tell me.
Suppose instead of these films, they had found counterfeit bills?
fellow have been prosecuted for possession of counterfeit bills?
ASINOF: I think so.
How do you
ASINOF: I distinguish
that, and I concede that where evidence is seized, or where contraband
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
the right to prohibit the possession.
I take it that
Harrison would require that, if it were counterfeit money?
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
but they were seized under a warrant issued by the United States
under the Wagering Tax Act, under a contention that the defendant had
registered as a gambler.
Was this man a
merchant, or a distributor of any kind?
ASINOF: No, sir. There
was no claim of any distributorship. He was an individual, in his own
State, of course, alleged and contended that he had a record for
the past, and that Federal agents and State agents were going in for
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
of course since then-
Well, in the
prosecution and the actual trial for the possession of these films, was
any effort to at least prove that the possession of the films was for
purpose of sale?
ASINOF: No, sir.
It was just
naked "possession of the films"?
ASINOF: This is not a-
There was one
other point. There were biscuits in the kitchen.
ASINOF: This was
brought up in the brief to this Court that there were biscuits being
be put in the stove; that there were well-dressed people who came to
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,
like they were fixing to have supper-getting ready to have supper-and
reason, they said that apparently he was going to have a party. This
contention. This was the contention raised by the State, but I want to
Court's attention to this-
Where was this?
Where was this?
ASINOF: In Atlanta.
Was there any
claim that this party was going to include the showing of these films?
ASINOF: That's what
they claim. They claim, circumstantially there's no evidence of that at
The defendant denied knowing anything about-
Well, as I
understood you to say, neither screen nor projector was set up?
ASINOF: That's right.
And the films
were in cans in the desk drawer?
ASINOF: Upstairs in the
bedroom of the defendant, in a desk drawer.
But you say the
claim-was there any effort at the trial to show that he was going to
party, including showing these films?
ASINOF: No, sir, none
whatsoever. No testimony of that, at all.
Well what do you
do with films, normally?
ASINOF: Well, I would
imagine that you would show them.
Do you keep them
as a souvenir, or show them?
ASINOF: Well, I think
that an individual could do as he pleases with them; but the point is
this case-and this is the paramount thing in here that the State did
contend by its indictment that he had any intent to show them. And this
of our grounds of demurrer in the trial court, in the State Court.
You mean showing
them to somebody else?
ASINOF: Whether there
was any intent to do anything with them.
Or even to show
them to himself? There was nothing, as I understand you-there is
indicate, except that he had them in the drawer, and in the closet he
projector and a screen?
ASINOF: That's right.
He could have shown them for his own use.
Or maybe he
wasn't going to show them at all.
ASINOF: Maybe he wasn't
going to show them at all. He contended by his-
He was going to
keep them as a keepsake?
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
at no time in its indictment charged this. We demurred on the grounds
vagueness of the Georgia statute. The Georgia statute did not
the mere possession an offense and we asked for interpretation by the
Court, and got it. The Supreme Court construed the language to be
make the mere possession an offense. And that's why we are in this
because of the fact that we are reinforced by the State Court decision
that the mere possession is an offense; and we say that gives it an
The nub of this
case appears on page 69 of the appendix, doesn't it-right at the top of
page, that one sentence?
ASINOF: I believe so,
"It is not
essential to an indictment charging one with possession of obscene
it be alleged that such possession was with intent to sell, expose, or
circulate the same."
MR. ASINOF: That's correct.
And that's a
clear holding by the highest court of your State, that mere
my Brother Brennan says, "naked possession" -is sufficient to
constitute a criminal offense?
ASINOF: That's correct.
That is the holding of the Supreme Court. So the question is squarely
this Court, as to whether or not under that interpretation given to it
supreme court of Georgia, whether or not that can be squared with the
Amendment; whether mere possession of material alleged to be obscene
or writings-can be constitutionally made a criminal offense.
To get it down a
little closer, it is that naked possession-pictures of naked persons
kept in a person's house, without his committing a crime?
ASINOF: Under Georgia
law, under the interpretation given by the supreme court of Georgia
What did this
fellow get, a year?
ASINOF: Yes, sir. He
received a year's punishment in prison. That was fixed by the jury, and
under the charge of the court. Of course under Georgia law, peculiarly,
jury fixes the punishment; and under the charge of the court, the court
the mere possession as being-that that's all they had to consider-
with either that he had knowledge that they were obscene, or that he
reasonably have known of its obscene nature. Now this gets to the
question of whether or not a state can withdraw the element of scienter
permitting a conviction to rest upon less evidence than actual
it is obscene.
Has your client
been out on bail?
MR. ASINOF: Yes, sir, he's been out on bail.
involved in this case, as I've stated, is that this Court has held in
and Marchetti since this case was tried, that the Wagering Tax Act is
constitutionally unenforceable. Now this holding by the Court renders,
the search warrant that was issued in this case invalid. We filed a
suppress in the trial court. In our motion to suppress-
When was the
search warrant issued?
ASINOF: The search
warrant was issued before the Grosso and Marchetti decisions. It was
1967, but it was about-it was some months before Grosso and Marchetti.
filed a motion to suppress evidence, and in our motion the allegation
that the films were seized without a valid search warrant, particularly
describing the articles to be seized. That language, we say, is
now reach back as of that time and say that that was a sufficient
the warrant itself.
Do you argue at
all that even if the warrant was valid, and even if Marchetti and
weren't retroactive, that nevertheless the search was invalid because
warrant described gambling paraphernalia, and they nevertheless seized
which-it isn't like just running across contraband that is lying out in
sight, you have to actually look into the film to see what's in it?
ASINOF: Not only look
into the film-
Do you make that
ASINOF: Yes, sir. Not
only look at the film, but there had been no-this requires, on the
obscenity, it would require at least the finding of a magistrate to
that these films were obscene. In this particular case, the evidence is
that this officer called the Solicitor General and asked the Solicitor
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
considered to be obscene, there must be some judicial finding, some
some knowledge, that these films have been declared to be obscene-at
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
himself had no judicial powers under the law of Georgia, had no right
to have seized the films; but that in this case he delegated some sort
judicial power to the officer making the finding and told him, "if in
opinion they're obscene"
I take it you're
relying on Marcus, aren't you? You're relying on Marcus?
ASINOF: Yes, sir, the
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?
ASINOF: That was under the
And we said that
they had to have a determination in advance; but isn't this a little
Here you have just a single item. Just how would you get the film to
determination of obscenity, before a search warrant issued? How would
ASINOF: Well, if the
Solicitor General had instructed the officer to "submit your facts to a
magistrate, and if he"-
What facts? He
would have to take the films, wouldn't he?
ASINOF: No. He could,
by affidavit, submit to a magistrate who was authorized to issue a
could submit what these films revealed to him.
another argument, he wasn't even entitled to look at them.
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.
wouldn't be obscene unless it lacked some socially redeeming value, as
understand it, and you couldn't tell that unless you saw it.
ASINOF: Of course, Your
Honor, that's true; but I think that's something that has been the
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
movies shown at the trial?
ASINOF: Yes, sir, the
movies were shown at the trial.
THE COURT: It was a jury trial?
ASINOF: Yes, sir.
THE COURT: Are they here?
ASINOF: Yes, sir, I
think this Court has them. And I would say this, that of course I
would concede to this Court-that the pictures-the films, insofar as
concerned-I think they are disgusting. But I don't know that
makes them obscene. I don't know that they would appeal-they wouldn't
my prurient interests. I don't know whose prurient interests they would
to because I think that they're sickening, but I don't think that
more sickening than it would be to show a man being tortured to death,
having his guts torn out of him; but that wouldn't be obscene. It's
to say what obscenity is, but getting right to the point in this case,
that if they are the vilest, the filthiest pictures that could ever be
that a person has the right to possess them, as long as he has not-and
what this Court held last year in Redrup, and the other cases along
Redrup-that as long as there is no pandering, as long as there is no
to minors, and as long as there is no intrusion upon the privacy of
persons who are unwilling to see them, then of course we have nothing.
is all we have in this case, unless we want to accept the State's
because there were some biscuits being prepared to be put in the stove
because of the fact that the table was set for eight, where they were
have dinner-and against the statement of the defendant in the trial on
with nothing to refute that, that a man had brought these films to him
days before and told him, said "I have some films that I'd like you to
Now we say
this, if the
Court please, that wherever we find that a question of obscenity is
or whether or not we know that something is obscene, if A tells B, "I
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
obscene to him? Or does that mean that he would have the right,
inspect those films and say, "I have a right, under the First
to determine whether"-
Well, you don't
have that case here. Why argue that case?
ASINOF: Well that is
what it would actually-
All you have
here, as I understand it, assuming any obscenity in these films, is a
of whether the possession and nothing more-not for sale or
the possession, of itself, constitutionally can be made a crime under
Amendment. Isn't that what it is?
ASINOF: That's right.
And that's why I say, if Your Honor please, that because of that a man
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
me some film-
there anything in this record to show that he had any knowledge as to
these films were?
whatsoever, except the fact that they said-an expert testified that the
had been scratched; one of them was wound backwards, to show that
seen them at some time in the past; but nothing to show that he had
or he had ever viewed them, and there's nothing to refute or rebut his
statement that he had never seen them before.
Were they in his
trunk upstairs, or bureau drawer?
ASINOF: In the desk
drawer of his bedroom upstairs-and there was no setup, nothing set up,
screen set up to show these, or view these films.
between this and the Wilkes case which was tried a long time ago is
they found the paper at the bottom of his trunk, and here they found it
desk drawer, and they turned him loose.
ASINOF: I think that
that would be analogous. So I would like to reserve what time I have
know the white light hasn't come on, but I would like to reserve, if I
time for rebuttal.
You may. Mr. Sparks?
ARGUMENT OF J. ROBERT SPARKS, ESQ.,
ON BEHALF OF APPELLEE
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
counsel. Mr. Asinof was the defense counsel. Now, I want to point out
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
this Georgia statute contains the element of scienter, I want to point
the Court that the supreme court of Georgia ruled on that, in this very
The court said-and I'm just reading in part, just a line-"It is
that the requirement of reasonable knowledge would withdraw the element
scienter from the definition of the offense and would render a person
without actual knowledge of the obscene nature of the matter. This
is without merit."
Honors, as we
have pointed out in our brief, this Court has consistently held that
State statute is interpreted by the highest court of its State, that
is bound by the construction placed on it by that court. That happened
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
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
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."
submit-I submit, very
respectfully, that by a long series of this Court's own decisions, that
cannot go beyond, or reverse, the judgment of the Georgia supreme court
question of scienter, because that is a State court interpreting its
statute. And I have cited a number of cases where this Court has said
"we are bound by such expression." This Court also said it in the
Mishkin case. It said it in the Kingsley International Picture
case-in about eight cases, Aero Transit, all of which are listed in our
moves us on to the
second facet of the attack on the constitutionality of the statute. I
most earnestly to the Court that scienter is an element of this offense
interpreted by the Georgia court-by the Georgia supreme court-and that
Court cannot, unless you reverse your prior rulings which are set out
brief and which I've cited to you-unless you reverse that long line of
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."
What was the
State's evidence on scienter-to prove scienter?
SPARKS: It was
circumstantial, Your Honor, but we think it was sufficient. These
in with a Federal search warrant to seize wagering paraphernalia. This
alleged to have been a notorious bookmaker with a prior record of
arrests and a
I suppose that
wouldn't have any connection?
SPARKS: That wouldn't
have any connection with this case, but I was pointing out the
cause" we had.
No. I am
interested in how you brought evidence, and what evidence there was,
the jury could find that he "knew" the contents of these motion
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
Court hasn't viewed these films. They are here and I have asked the
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?
SPARKS: Well the
evidence showed, Your Honor, that in the upstairs living room there was
projector set up, and a bunch of innocuous films, slides, travelogues,
like that-these films were not found with the other films, the
innocent-type films, but they were found in a desk drawer underneath
papers, in his private bedroom. The officers ran them, threw them
wall, and then went downstairs and told him, "We are arresting you for
obscene films that were found upstairs. "
Well why did
they show the films? They were looking for what-the search warrant was
to what? And with that, why did they want to look at a film?
SPARKS: Your Honor, Mr.
Justice Marshall, I think that they wanted to look at the films for the
that the films might have been a record. They were authorized to look
bookmaking records, and it's not inconceivable that-
Would he have
them in a tin can marked "Young Blood"?
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.
I assume the
policemen read Edgar Allen Poe?
And as soon as
they saw the first film-the first frame-you thought you were still
SPARKS: No, sir, but
there were three cans.
They ran through
all three, I take it?
SPARKS: They didn't
show all three of them, Your Honor. The record shows that they only
few feet of the second and third one. In fact, one of the films had
rewound backwards-which shows recent viewing-and the pictures were
Now you were
going to tell us that he went downstairs, and I gather you were going
us that he met the defendant-the officer did?
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
against him; that's a constitutional right. But it would still seem
logical to say, "What films?" if he didn't know that he had any
obscene films; but of course-
All right. But
so far all you've got is that he said nothing?
SPARKS: Yes, sir.
Now what else
have you got? The officer said to him, "I'm going to arrest you for
obscene films." The defendant said nothing.
SPARKS: He said,
"Let me call Mr. Asinof," and he did call Mr. Asinof.
Now does the
fact that he called his lawyer indicate that he knew what those films
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.
people were in the backyard when the officers made the execution of the
warrant-two men. Three women came over later that evening-well-dressed
was Justice Marshall's three dozen biscuits sitting on the stove. All
indications were that there was going to be a party, and in fact he
jury that he was going to have a party. And in that connection, in the
of his statement telling about the party first, and a friend bringing
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
Well is there
anything in what you've told us that would support an inference that he
looked at the films and knew what they were?
SPARKS: Only-one of the
Federal agents was a former professional photographer, Your Honor, and
testified that the films were badly scratched; that they were dirty;
of the films had been wound backwards which caused the figures to
upside down on the wall when they showed it; and he said that they had
obviously been used before-been shown before, many times.
Many times, did
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
that they had seen "extensive use." I could find that for you.
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.
came on for further oral argument at 10:10 o'clock a.m.
ORAL ARGUMENT OF J. ROBERT SPARKS, ESQ.,
BEHALF OF THE APPELLEE-RESUMED
MR. SPARKS: Mr. Chief Justice, and
the recess yesterday afternoon I was just completing my response to
by Justice Douglas-excuse me, not Douglas, Brennan-as to the evidence
scienter. And I had practically completed a summary of the
we feel justified the jury to find that this defendant knew all of the
nature of the matter. I just want to elaborate in one respect.
arguing that, are you? That he knew it was obscene? You're just arguing
knew the contents of the films?
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
want to point out
two things in relation to his statement and then I will move on to
else. In his unsworn statement, when he attempted to explain his
the films in a manner consistent with lack of knowledge of the
submit that it was an unreasonable explanation-it was somewhat
said that a
friend brought the films by and left them with him, saying that he
appellant to view the films. I submit that it's somewhat unreasonable
would have exchanged hands, without some explanation on the part of the
friend, or some query on the part of the appellant as to what kind of
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-"
Well what if you
asked him, and he said, "They are films about girls."?
SPARKS: Then I think-
Would you know,
or would you have any real clue, that they were "obscene" films?
SPARKS: I think that
would warrant further inquiry, Justice White.
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?
SPARKS: There is no
evidence because, of course, this was an unsworn statement and the
not allowed to cross-examine him or go into it without his consent,
voluntarily submitted himself to cross-examination.
The State has
the burden of proof, doesn't it?
SPARKS: Yes, sir. The
State had the burden of proof, Your Honor. But I think this is both
State law, as I recall from my days as an Assistant U.S. Attorney, that
the defendant goes ahead with an affirmative defense, then not the
"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.
statement he also said "I never saw the films before today, and never
shown them to anyone, so help me."
SPARKS: Yes, sir, that
is true. And I want to point out, in that connection, before I pass
subject, the case of Smith v. California, which this Court decided, in
the defendant was convicted for the offense of bare possession of
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
by Mr. Justice Brennan: "We might observe that it has been some time
the law viewed itself as impotent to explore the actual state of a
Eyewitness testimony of a bookseller's perusal of a book hardly need be
necessary element in proving his awareness of its contents. The
may warrant the inference that he was aware of what a book contained,
submit that those
quoted words are pretty analogous to the facts in this case. We are
the circumstances. We have no direct evidence that he saw-that he even
what the films were. But we submit that all of the circumstances: the
party, the films concealed, the title "Young Blood," is rather
interested. How does that title suggest anything? I don't get this
Blood." What's that suggest? Or is it my age? I don't know.
SPARKS: Well, I think
it suggests sex, Your Honor. We normally associate sex with young
I guess it is my
Do you think we
have to view the film, if there are-do you think we have to view the
there are constitutional bases that don't relate to the subject matter
films, for disposing of this case-such as the question of mere
the search and seizure question? Why would you want us to view the
SPARKS: I was fixing
to-that was going to be my very next statement, as to the legal reasons
feel that the films should be viewed.
Even if we think
that you can dispose of this case-must dispose of the case-on the
ground, or the search and seizure Fourth Amendment grounds?
SPARKS: Yes, sir, I do
for this reason-
All right. Tell
SPARKS: This Court, or
the majority of this Court, has consistently held in obscenity cases
on through Jacobellis, Mishkin, Ginsberg, even Redrup I believe, and
Ginsberg case in 1968, that obscenity is not protected by the First
to the Constitution. And if the Court views these films and finds that
not only-that they are not borderline obscenity, but hard-core
You mean, if
this is obscene we should not reach the Fourth Amendment question?
SPARKS: Should not
reach the First Amendment question.
Amendment question of search and seizure?
SPARKS: Oh, no, sir.
I'm not saying that. I think-as a matter of fact, I am not absolutely
Justice Stewart, that the search and seizure question is actually
I'm Fortas. This
is Stewart (Indicating).
SPARKS: Excuse me. I'm
sorry. Search and seizure is not an appeal able question. The Court
probable jurisdiction without restricting the question to the only
question, which is the constitutionality of the Georgia search and
mean, the constitutionality of the Georgia Obscenity Act. And the same
happened in the Mishkin case, and the Court dismissed. They said that
search and seizure question was properly briefed by both parties, and
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
Court would have to pass on the search and seizure question, but right
addressing myself to the constitutionality of the Georgia statute.
understand that, but I want to be clear on one matter with respect to
SPARKS: Yes, sir.
Now here are
some allegedly obscene films. I haven't seen them, but if I should
this case must be reversed on the possession point, or on the search
seizure point-Fourth Amendment point-I would not consider it, as
advised, I would not consider it necessary to endure a sight of motion
films whatever their content may be. Do you consider that you disagree
that present thought of mine?
SPARKS: I disagree with
it, Your Honor, as far as the First Amendment ground is concerned.
I'm not talking
about the First Amendment. I'm talking about the two points that I'm
namely the possession and the manner of seizure, which are Fourth
SPARKS: Your Honor, I
feel that the-
And maybe the
possession is a First Amendment point, in a sense, but not in the sense
you're talking about. I take it you're talking about-
SPARKS: Well, the
appellant is asking this Court to declare a mere possession count-I say
possession with scienter count - unconstitutional.
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
films, then it obviously wouldn't be necessary for us to see the films,
SPARKS: Your Honor, I
take the reverse position. I say that you should see the films, and if
hard-core pornography and outside the protection of the First Amendment
Court has held in Roth and a whole series of cases, then it would not
No. But I say,
assuming that we felt-assuming that I should conclude, that insofar as
concerned, mere possession cannot be punished as a crime regardless of
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
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.
SPARKS: That's an understatement,
Your real point
is, isn't it, that appropriately some of these questions might be
SPARKS: Yes, sir,
that's correct. That's what I mean.
I hope you're
going to address yourself to the constitutionality of this statute:
possessions, without any purpose to exhibit, sell, or display?
SPARKS: Yes, sir, that
was going to be my next point. To the best of my knowledge and
research, and I
Let me ask you,
before you do that, as I read the record it seems to me that the only
established in the evidence that the picture has been displayed in
when it was displayed in the prosecuting attorney's office to a group
people. Is that right?
SPARKS: That is the
only evidence that it has been displayed in Atlanta. I recall that Your
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.
Black, you asked me about what the expert photographer said. He said
films are badly scratched and dirty. They are not in new condition at
That's where I mistakenly said that they had seen "extensive use."
are not in new condition at all. One reel was rolled backward and never
after a showing of the film." And he says, "Yes, sir, they obviously
had been shown before."
But where in the
record does it say they were shown in Georgia before? It doesn't say it
It says they were shown "some place" before.
SPARKS: That's true,
sir, Your Honor. We didn't have any eyewitness who watched this
undisputed evidence was that the appellant had barely come into
these films that very day.
SPARKS: That was not
evidence, Your Honor. That was in the form of an unsworn statement.
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-
Well are you
suggesting that we should disregard that statement entirely?
SPARKS: I'm suggesting
that the Court should consider it, and consider its deficiencies.
Well, if we do
then we know that he had "barely come into possession of the films."
SPARKS: Well I'm not
saying that the Court should believe it all, in its entirety, because
natural thing for him to have done was-if that's true-was to have
person into court, or at least named him, so that the prosecution could
brought him into court.
I have only a couple of minutes left, and I haven't addressed myself-
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
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
which this Court admittedly reversed, but only because there was no
it seems to me that the opinion which I've quoted from once before
or implies, that had the California ordinance had the element of
it, that it would have been constitutional because-Mr. Justice Brennan
this-"We need not, and most definitely do not, pass today on what sort
mental element is requisite to a constitutionally permissible
prosecution of a
bookseller for carrying an obscene book in stock."
THE COURT: "For sale."
SPARKS: That is the-
sale." What's bookseller mean?
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.
But that case
did involve a bookseller.
SPARKS: It did involve
a bookseller, but-
It involved a
prosecution, for having books for sale, didn't it?
SPARKS: I can't see,
honestly, where the First Amendment grounds hit this particular case.
is not a bookseller. He was suspected of being a bookmaker, rather than
bookseller. Now he was not intending to sell these films, so far as the
available evidence indicates. The general public was not deprived of
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.
that a possession
statute is necessary for effective law enforcement from the very type
evidentiary problem which has been pointed out by questions from this
you catch a man with the pornographic material, how are you going to
he has read it, or that he has looked at it, or that he intends to sell
can stop pornography at its source, and I earnestly submit that this is
hardest type of hard-core pornography that this Court has ever had
MR. CHIEF JUSTICE WARREN: Thank you very much. Mr. Asinof?
REBUTTAL ORAL ARGUMENT OF
WESLEY R. ASINOF, ESQ.,
ON BEHALF OF THE APPELLANT
Give me your
view of how you would argue the possession point, accepting the fact
Court has said that obscenity is not protected by the First Amendment.
ASINOF: In the Roth
case where that principle was established, we find that the Roth case
question of distribution.
instance where an
individual who possesses something that we'll admittedly say is
the Constitution does not protect him from the distribution; and this
followed in the Redrup case.
Yes, but the
case says the obscenity isn't within the First Amendment.
ASINOF: That's correct,
but the case was dealing with the question of the distribution.
But you mean
that obscenity, in the course of distribution, is not protected? And
in possession, is protected?
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-
doesn't change any, so what is the critical fact? The material, whether
"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
ASINOF: Well, in the
distribution, you're dealing with the question of furnishing it to
the mere possession in the privacy of your own home where no one else
it, where there's no evidence that anyone else has-or no one else is
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
posterity, for himself, if he so chooses, because to do so-to prohibit
from possessing it would in itself violate First Amendment rights.
Well what do you
say to your adversary's argument that the State, constitutionally, can
"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?
ASINOF: That, in itself-that,
in itself, would be a violation of the First Amendment. To say that a
could not write what he wants in his own diary-let's say that he's
keep for his own personal future in his own drawer, not to be shown to
other persons-we say that the First Amendment is an absolute amendment
gives a man the freedom of the press, and the freedom of the press
it the freedom of motion picture films.
But the Court
has held-at least the majority has held-that it is not an absolute
right in the
ASINOF: But that was
held in the Roth case, Your Honor, and the Roth case involved-
But what your
adversary is saying is that the State can legitimately-again, on the
that what's involved here meets the Roth test-
ASINOF: Then we come
into the Redrup case.
-can nip it in
ASINOF: Well then, we
come into the Redrup case, which was decided since Roth. And this Court
year in Redrup and the other cases that went with it, reversed on the
and on the principle, that there had been-that this was not a case
of the three elements: either distribution to minors, distribution to
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
and Roth together, as they both hold and say that obscenity insofar as
possession and bare possession-and I use that expression- insofar as
possession is concerned, would be protected by the First Amendment
there you are not intruding upon the privacy or the rights of others to
from this stuff.
Now in the
thing I would like to answer my opponent with respect to, he says that
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
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
holding of a State Court on a constitutional issue from reversing that
Court, because this is the final arbiter- this Court is the one that
decide the Federal ground.
secondly, in the brief
of the appellee, on page 45, he cites the case of Rainwater v. Florida,
was decided by this Court during the last term. The Rainwater v.
was one that originated in the State Court. There was a Federal search
issued under the Wagering Tax Act. They seized certain items from the
defendant's possession, and they prosecuted him in the State Courts.
remanded that under the theory of Grosso and Marchetti-remanded it back
State Court for further proceedings, not inconsistent with Grosso and
identical to the
case we have here. The State says in its brief that they’re the
the State Court was the end result of the issuance of the Federal
warranted. That's what we have in this case. This prosecution for
the end result of the issuance of the Federal search warrant, which
Rainwater v. Florida doctrine, was inadmissible as having been
To get back to
this possession point, under the State law assuming that possession
crime-mere possession was a crime, and not barred by the First
the State get out a search warrant to search your own library, on the
an affidavit that would say that you have in the library a copy of
Joyce's Ulysses, a copy of this book and that book, and that there
they get out a search warrant to examine your entire library?
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
In other words,
they'd have to name the specific book?
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
that one reel of film had been wound backwards, or was "scratched,"
and that that would indicate that someone had previously viewed that
it would not show, and we submit to this Court that that fact alone
and would not show that this defendant, or this appellant, had ever
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.
o'clock a.m., the argument in the above-entitled matter was concluded.]