United States Supreme Court advance opinion Smith, Eleazar vs. People of the State of California

Media

Part of The Lawyers Journal

Title: United States Supreme Court advance opinion Smith, Eleazar vs. People of the State of California
Language: English
Source: XXV (11) November 30, 1960
Year: 1960
Subject: Obscene publications; Pornography; Freedom of expression; Decision making; Judgments (Law); Appellate courts; United States. Supreme Court
Rights
Abstract: The appellant, Mr. Eleazar Smith was convicted in a California Municipal Court, Los Angeles City for illegally disseminating, possessing, and selling obscene/indecent printed materials. He appealed and claimed that there were three (3) grounds of invalidity under the due process division which is the invalidity of the ordinance as a summary of the freedom of speech; the exclusion of duly qualified witnesses in the literary and moral criteria, and that the questioned book is not an offensive publication. The court’s decision was reversed and remanded the case for a new trial in the effect of depriving Mr. Smith of the opportunity to present expert testimony base on the community standards.
Fulltext: UNITED STATES SUPREME COURT Advance Opinion ELEAZAR . SMITH, Appellant, . PEOPLE OF THE STATE OF CALIFORNIA -US-,4 L ed 2d 205, SO S C._ (No. 9) Conatit1&t'ionat L111t• ll'cc, 9255 - freedom of speech a.nd press. 1. · The liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. Constitu!Jioncd La.w sec. 925 - freedom of press - co~ WO'J"ks, 2. The free publication and dissemination. of books and other forms of the printed word are protected by the oonstltutional ruaranty of freedom of speech and press, irrespective of. whether the diasemination takes place under commercial auspices. Criminal Latu sec. 6 - mBM na. s .. The existence of a men's rea is the rule of, rather than the exception to, the principles of Anglo-American erimin&l juriserudence, Criminal Law sea. 8 - ,,OWer of the st1ii. - scimt.,., 4. It is competent for the states to create strict criminal Ha· bilities by defining criminal offenses without any element of scienter, though even where no freedom-of-expression question. is involved, tbi& power is not without limitationsConatituViontll La.w uc. 926 j Evidence aec. 88 i Tun aec. 142 - freedom of apeecl&. - but"Cl• Gf proof -- n-emptiona. 5. While the states generally may replate the allocation ol the burden of proof -in their court&, and it is a common proceJu1·al device to impOSts on a taxpayer the burden of proving his en-tiUement to exem.l'tiona from tazation, nevertheless, the applicalion of this device will be struclr. down b)I' the United States Supreme Court whe1-e it ·is being applied in a manner tending to cause e"vcn a aE!l1-impoaed restriction of free expression. 8tcJtaOes Ho. 88 - seperabilittl - fnefiom of BJ>6Cal.. 6. The usual doctrinea as to the separability of constitutional and unconstitutional applications of statutes do not apply where their effect ia to leave standing a e.tatute patently capable of many unconstitutional applications, threatening those who validly exerci!e their rights of free expression with the ex.pense and incc..nvenience of criminal prosecution. Con.atitutional lANJ sec:. 925 i Ststutes uo. 17 - wgu8'&88a - fre«lom of apeer.1.. 7. Stricter standard of permissible . statutory vagueneaa may be applied to a atatute having a potentially inhibiting effect 'n ap~h i a man may the less be required to aet at his peril in such a situation, because the free dissemination of ideas may be the loser. Conatitutionc.l LGto He. 925; Food. Gftd' Dnga aec. 1 - dutJf' o/ csn - fre«lom of apeec.\. S. While there is no specific eanstitutional inhibition apinat making the distributors of food the strictest censors of their merchandise by imposing upon them an absolute standard which will not hear a distributor's plea as to the amount of care he baa used, the constitntional guaranti91 of the freedom of speech an.J of the press stand in. the wq of imposi1Jc a similar requirement on a bookaelJer. I~ • .LftCl(faeaa, tJm4 068Cftitt/ He. 1 - aC'ienter. 9. Common-Jaw prosecutions for the dissemination of obseen.e matters adhere strictly to the requirement of aeienter. Evidnoe 8808. 148, 914 - howled.ge - Obacen.i,,.. 11). E:J8Wi,tneaa test.lmonJ' at · .: bookseller's perusal of a book hardly need be a necessary element in proviDC' his awareneas of its obscene contents; the circumstance. may warrant the infe1ence that he was aware of aueh contents despite hia denial. ConaOitution.al LIMO aec. 925 - f'rHd,om of speech. 11. The fundamen'll'!l freedom o>f apeech a.nd press have contributed greatly to the development and well beinl' of our free society and are indispensable to its continued growth; ceaselru vigilance is the watchword to prevent their erosion by Congress or by the states. Con.atitutionsl Law aec. 925 - /nedom of apeecA and preae. 12. The door barring federal and state intrusion into the area of f1-eedom of speech and press cannot be left ajar; it must be kept tightly closed and opened only th~ slightest crack necessary t.o .iJrevent ·encroachment upon more important interests. lndecetacu. .Lewdneas, G7td b61oenit11 sec. 1 - power of sta.te. 18. The existence of a state's power to prevent the distribution Of obscene matter does not mean that there can be no oonstl'tutional banier to aQ 'form of practical exerd8& Qf th.at pnwer. Coutitutionsl Law sec. 930 - freedom Q/ pt'saa - Weoent boob - acisn.tler. 14. A municipal ordinance which, without requtrhig scienter, makes it a criminal offense for any })er.son. to have in his possesaion an ob.scene or indecent writing or book in o. place of buai11ess where books are sold or kept for sale. has such a tendenc7 to inhibit constitutionally protected expreBSion that it cannot atand under the Federal Constitution· Pointa from Separate Opiniona Crimin.ml lsw sec. 6 - acimter. 115. The rule that acieater is nx required in prosemtiona for so-called public welfare ('fienses is a limitation on the general principle that awarene11 of what one is doing is a prerequisite for the infliction of punishment. (From separate opinion by Frankfu:rther, J.) ltMleonq, Lewtluaa nd' 06scnitJ' aec. 1 - community st1171dMde. 16. The detm:minatlon of obscenity is for juror or judge, not on the bas18 of his personal unbringing or restricted reflection or particular experleno:e of life, but o:n the baais of contempoTa?'J' oommunit;v standards. (From separate opinions by Frankfurther, ,t,, and Harlan, JJ.) Constitutional LCHCP sec· 840 - due prooeBI - evidence - o6acetrity. 17. The due process clause of the Fourteenth Amendment ia violated by exclusion. at the state trial of a bookseller for possession. of obacene books in his shop, of o:idence through duly qualified witneasea regarding the prevo.ilinc literary standards and the literary and moral criteria by "which books relevantly comparable to the book In controversy are deemed not obscene. (From separate opinion b)I' Frankfu1ther, J.) Constitutional £a.w sec. 786 - d'uei rwoceas - Mtwing. 18. Due process in its primary sense requires an opportanitJ' to be heard and to defend a substantive right. · (From separate '>pinion by Frankfurther, J.) Constitutional La.w sec. 840 - d'u• fWOd811 - evi~e - obacnity. 19. The state conviction Of a bookseller for bavinc in bia possession obscene books violates the process clause of the Fourteenth Amendment, where the trial judge turned aside every attempt by defendant to introduce evidence bearing on communitJ' standards. (From aeoarate opinion by. Harlan, J.) APPEARANCES OF COUN~EL Stanlou Fleiahiman and S11m Rosen'Wrin. argued the cause for appellant. Boga,: Arneberg arsued the cause for appellee. LAWYERS. lOURNAL N .. ember 80, 1900 OPINION OF THE COURT ldr. Justice Branan delivered the opinion of the Court. Appellant, the proprietor of a bookstore. was convicted in a California Municipal Court under a Loa Angeles City ordinance which makea it unlawf\11 "for an7 person to have in his posaession any obttene or indecent writing, (or) book , , • in &DJ' place of business where . . . books . . . are sold or kept for 1&le." The offense was defined by the Municipal Court. and by the Appellate Department of the Superior Court, which affinned the Municipal Court judgment imposing .a jail sentence on a~ pellant, as consisting solely of the posaeision, in the appellant's brokat.ore, ot a eert.ain book found upon judicial investigation to be obscene. The definition included Dl' element of scienter · - knowledge by appellant of the contents of the book - and thus the ordinance was construed as imposing a "strict" or "absolute'' 1.'Timinal liabilitj. The appellant made timely objection below that. if the ordinance were so construed it would be in conflict with the Constitution Of the United States. This contention, toiether with other contentions based o~ the Constitution, was rejected, and the a.se comes here on appeal. 28 USO see. 1267 (2) i 868 !JS 926, 3 L ed 9d 299, 79 S Ct 817. Almost 80 JQl'S ago.. Chief Justice Hughes ~ed for this Court: "It is 1IO longer open to doubt that the liberty of the prea, and of speech, is within the liberty safeguarded by the due procesa clause of the Fourteenth Amendment from invasion by 11tate action· It was found impossible to conclude that this ·eaeential personal liberty of the citizen was left unprotected by the •general guaranty Of :fwldamental richt.a of person and property. . . . " Near v Minnesota, 283 US 897, 70'7, '16 L eel 1367, 1868, 61 S Ct 626. It is too familiar for citation that such has heaD I.he doctrine of this o~ in respect of these freedoms, ever &ince. And it also requires no elabo1·ation thai the free publication and dissemination of books and other fonns of the printed wo1·d lnrnish 'V9l'J' familiar applications of these eonstitutionally protected :freedoms, It is of course no matter that the disseminatidn takes place under eommereial auspices. See Joseph· Burstyn, Ine. "· Wilson, 343 US lf96, 96 L ed 1098, 72 S Ct '1'17: Groajean ., American Press Co. 29'7 US 238, 80 L ed 660, 68 S Ct 444. OertainlJ' a retail baok seller plays a most sicnUicant role in the process of the distribution of books. California here imposed a strict or absolute criminal re&ponaibility on appellant not to have cbseene books in his shop. "The existence of a mens res is the rule of, rather than the ezception to, the principles of A11Clo-Am&riean jurisprudence." Den· nis v United State!, 841 US 494, 600., 96 L ed 118'1, 114'1, 71 S Ct 867. Still, it is doubtless competent for the "states to ereate strict criminal liabilities 1-y defining criminal offense& without a11J' element of seienter-thoagh even where no- freedom-of-expression i& involved, there is precedent in this Court that this power is r.ot without lim.itationa.' See Lambert v. California, 855 US 225, !! L ed. 228, 78 S Ct 240. But the question here 111 as to the validity of this o-rdlnanee's elimination of · the scienter requirement - an elimination which may tend to work aa substantial restriction on freedom of speech. Our deeielon famish examples of legal devices and doctrines, In most applklations consistent with the Constitution, whlch cannot be applied in settings where thQ' have the collateral effect of inhibiting the freedom of expression, ~ making the individual the more reluctant to exercise it. The States gqerall7 may regulate the allocation of the burJen of proof in their courts. and it Is a common proeedural device to impose on a taxpQer the burdtm of pl'OTing his entitlement to ex· emptions from taxation, but where we conceived that this device na being applied in a manner tending to eauae even a aelf-im.· posed restriction of free expression, we struck down its applic .. tioa. Spalarer v Randall, 36'1 US 613, 2 L ed. 1480, '18 S Ct 1882. See Near .,. Minnesota, aupra (283 US at 712, '118) •. It baa been i;tated here that the usual doctrines aa to the separability of constitutional and uncettitutional applia.tions of atatutea mQ not apply where their effect is to leave standing a statute patently capable of ma11y unconstitutional ·applications, threatening those who validlJ' exercise their rights of free n.preasion. witll lh• expense and ineonvenienee of criminal prosecution. Thornhill Alabama, 810 us 88, 97, 98, 84 L ed 1098, 1099, noo, so s ct '186. Of. Staub v. Baxley, 366 US 818, 2 L eel 802 78 S Ct 2'17. And thia Court has estimated that stricter sta:ndanls of permissible sta.. tutor;v vag11enesa may be applied to a statute havill&' potentiallJ' Inhibiting effect on speech; a man may the leaa be required to act at his peril here, because· the frtte dissemination of idea1 ma1 be the loser. Winters v New York, 388 US 60'1, 609, 610, 617, 618, 92 L ed 840, 848, 847, 860, 861, 88 S Ct 666. Very much to the point here, where the question 11 the elimination of the mental element in an offense, le this Court's holding In Wieman v Upd• tcraff, 844 US 188, 9'1 L ed 216, 73 S Ct 216. There an oath as to past freedom from membership In RUbversive organizations, ezo.cted. by a State as a qualification for public employment, was held to violate the Constitution in that it made no distinction between members who had, and those who had not, known of the organization's character. The Court said of the elimination of scienter in this context: "To th:_us inhibit individual freedom of movement is to stifle the flow of democratic expression and eon':rover17 at one of its ch\ef sources.'' Id, 844 US at 191. Those principle& guide us to om decision here. We ban held that obscene speech and writings are not prqtected ~y the ponatitut.aonal guarantees of freedom of speech and the press. Roth v United States, 364 US 4'18, 1 L eel 2cl 1498. 77 S Ct 1804. The ordinance here in question, to be sure, only imposes erimlnal saJM> tions on a bookse1ler if. there in fact ia to be found in his shop an ub!.eene book. Hut our holding in Roth doea not recognize anJ .11..a~ power to restrict the d11sem.inat.1on o.f books wh1en are .not ouseene; w.w. we r.tunk tJWi orumanc.:1ra suiet baDun.y .tea.wre wowd tenc:I ser,ously to have that euect, by penab.zmc Dookselien, even tru.ucn tney llBCl noi; the 111cnw1t notaee of t.lle ellal'aC'8!" of the buou wey &Old. Appeuee aua. ine court. below awuoglH tb.is &tne~uabJhr.y penal ol'Oluauee to .tamLl1&r forms ot pena.I stator.ea w.n1eh a1spenae with any element of kbO'\\·ledge on the part. of the p81'80A charged, food and dru1 legl8J&uOD l;Jemc a prin· ripal aainplfl. We tmd the analogy instrueQve in our ezamina.. t.ion of the question before ua. The usual rationabie for such staLutea is that . tne puohc interest in the Purity of• ita food ia so enat as to warrant the imposition of the hlpst standard of c1ue on distributors-in fact an aLJsoiute standard wbicli wll.1 noi hear the {ijs\1'1butor's plea as to th8 amount Of ~are he has used Cf. Umted. .State• v .lialant, 258 UH 26Ui, ll'.5;r;..2.li)4, 66 L ed. ti04-tiU7, '2 S Ct 801. Hia icnoranee of the character of the food is irrelevant. '!'here ia no specllie const1tuT.10nal inhibition against ma· king the distributors of food the strieteat censors of their merehanaiae, but the constitutional c11&rantees of the freedom of speech and of the press stand in the way of imposing a similar requirement of the bookselle1·. By dispensing with any requi1·ement of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to eonstitutionall)'-proteeted matter. For the bookseller is criminally liable without knowledge of the contents, and the ordinance fullfila its purpose, he will tend to i-estriet the books he sells to those he has inspected; and thus the State will have jmpoaed a restrict.ion upon the distribution of constitutionally protected as well as obscene literature. It has been observed of a statute construed as dispensing with any requirement of scienter that: "Every bookseller would bo placed under an obligation to make hilDIBl:l aware of the content.a .,, eft!'J" book in his shop. It would be altogether unreasonable tu demand ao near an approach to omniscience." The Kine ., Ewalt, 26 NZLR 709, 729 (CA). And tl\e bookseller's burden would become the public's burden, for by restricting blm. the public's aeeeas to readiq matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an in.speetlon, the, might be depleted indeed. The bookseller's limitation in the N'""""bOr 80, 1960 LAWYERS JOURNAL U7 amount Of reading material with which he could familiarize himself, and his timic:lity in the face of his absolute criminal liability, thus would tend to reatrict the public's acceu to forms of the printed word wi:Jich the State could 11ot crmstitutionally suppress dfrectly. The bookuller'a self-censorship, compelled by the State, wuuld be a cl!nsonbip affecting the whole public, hardly leas virulent for being privately administered. Through it, the di• tribution of all books, both obscene and not obacene, would be impeded. It ia argued that unless the scienter 'requirement ia dispensed with, rqulation of the distribution Of obscene material will be ineffective, as booksellers will falsey discallm knowledp. of t.heir books' cDD.tents or falsely deny reason to suspect their ·obscenity. We might observe that it bu been aome time now ainr.e the l&v.· view i~elf 815 impot<'Dt to explore the actual state of a man's mind. See Pound, the Role of the Will in Law, 68 Harv r.. Rev 1. Cf. American Ccm1municatlom1 Asso. v. Douds 33Jt US 382, 411, 94 L ed. 926, 960, 70. S ct 674. Eyewitness testimony Of a bookseller's perusal Of a book hardly need be a necesB&l'J' clement in proVing his awareness of its content.I. The cireums-t.ancea may warrant the infe1uce that: he was aware of what a book contained, despite bis denial. We need not and most definit.ely do not pass today on what sort of. mental, element is requisite to a constitutionally permisaible }JJ"OSecution of a bookseller for carryi1lg' an obscene book in st.ock:; whether honest mistake aa to wether its contents in fact consti. Luted obscenity need be an c:xcuse; whether there might be cir· • cumatances under whicll the State constitutionally might require that a bookaeller inTeS{igate further, or might put on him the burden of explainill8' why he did not. and what such circumstances might be. Doubtless any form of criminal obecenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we COllaider today only one which goes ,tlJ the extent of eliminatine all mental elements from the crime. We have said:- "The fundamental freedoms Of speech and preu have contributed. greatly to the development and well-being of our free society and are indispensable to its continued ll'O'Wth. C'eaaeleas vigilance is the watchdog to prevent their erosion by Congreaa or Q the States. The door barring federal &lld st.ate Intrusion into this area cannot be left ajar; it must be kept tightlJ' cloaed and opened only the slightest crack necessary to prevent encroachment upon more iJnportant interest;.n Roth v United. Statel, supra (854 US at 488). This ordinance opens that door too far. 'l'he ~istence of the State's power to prevent the distribution ot obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise ot that power, Cf. Dean Milk Co. v Madison, 3'0 US 349, 95 L ed. 829, 71 S ct 295. It is plain to us that the ordinance in question, thou.ch aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution. Reversed. SEPARATE OPINIONS Mr. Justice Blaolc, concurring. The appellant was sentenced to prison for possessing in his bookstore an "obscenen book in violation of a Loa Angeles cit, ordinance. I concur in the judgment holdiug that ordinance un· NDStitutional, but not for the reason given in the Court's opinion. The Court Invalid&& the ordinance solely because it penalize11 a. bookseller for mere possession of an "obscene" book, even. though he is unaware of itll obscenity. The grounds on which the Court dl'awa a constitutional distinction between a law that. punishes possession ot a book with knowledge of its "obscenity" and a law that punishes without such Jmowleclge are not ~suasive to me. Thoae grounds are that conviction of a bookseller for possession of an "obscene'' book when be is unaware of its obscenity "will tend to restrict the books be sells tC> those he has inspected," ancl thoretore "m&J' tend to work a aubstantial restriction on freedom of speech." The fact is. of t.ourse, that Prison sentences for pos· seSBion of .. obscene'' books will seriously burden freedom of the pr.esa whether punishment is imposed with or without lmowledlJ' ot the obacenity, The Court's opinion correctly points out how little extra burden will be imposed ou prosecutors by requirin1 proof that a bookseller was aware of the book's contents when he poaseasec:l it. And if the Constitution's requirement of knowledge is so easily met. the result of this case is that one particular bookseller gains his freedom; but the way is left open for staW censorship and punjshment of all other bookl"ellera by merely adding a few more words to old censorship laws. Our constitutional safegqarda for speech iand press therefore gain little. Their victory, if any, is a Pyrrhic one, Cf. Beauharnais v. Dlinois, HS US 260, 26'1, at 276, 96 L ed. 919, · 932, 936, 72 S Ct 726 (dissenting opinion), That it is apparently intended to leave the way open for both federal and state governments to abridp speech and press (tothe extent this couTt approves) is also indicated by the following statements in the Court's opinion: .. 'The door barring federal and state intrusion into this area tf1·eedom of speech and press) can-. not be left ajar; it must be kept tightly closed and openeed only the slightest crack necessary to prevent encroachment upon more important intereats.' • . • This ordinance opens that door too far.• . This statement raises a number of questions for me. What are the "more important" interests fot the protection of which constitutional freedom of speech and preaa must be l'iven second pJace? Wlaat is the Standard by which one can determine when abridgmeni of speech and press goes "too f&rn and when it ii slight enough to be constitutionally all<:>wable? Is this momentoue decision to be left to a majority of this Court on a case-by-case baai1? What ezpress provision or provisions of the Constitution put freedom of speech and p1-esa in this precarious position of SU· bordination and insecurity? Certainly the First Amendment'! language leaves no room for inference that abrigeme.nts of speech and. press ean be made just because thlJ' are slicht. That Amendment provides, in sim· pie words. .that .,Congess sball make no law , • .abridging the f1·eeclom of speech, or of the press." I read "no law abridging" to mean wo la,11,1 alwidghr.g. The First Amendment. which is the eupreme law of the land, has thus fixed. its own value on freedom of speech and press by putting these freedoms wholly "beyond lhe reach" of federal power to abridge, No other provision of the CC>Datitution purport• to dilute the scope of these unequivocal com· mands of the Firat Amendment. Consequently, I do not belieft that &DJ' federal sgenciea, including Congress and this Court, have power or authority to subordinate speech and press to what they think are 11more important interests." The contrary notion la, in my judgment, court.made not Constitution-made. State intrusion or abridl!llellt ot freedom of speech and of press raises a different question, since the First Amendment by ita terms refers only to law passed by Congress. But I adhere Lo our prior decisions hotdfug that the Fourteenth Amendment made the first applicable to the States. See cases collected in the. concurring op;nion in Speiser v Randall a&7 US 618, 630, 2 L ed. 1460, 1476, 7 S Ct 1382. It follows that I am for reversing this case because I believe that the Los Angeles ordina"Dce sets up a censorship in Tiolation of the First and Fourteenth Amendment&. If, as it seems, we are on the way to national censorship, l think it timely to sunest again that there are grave doubts in my mind as to the desirability on constitutionnality of this Court's becoming a Supreme Board of Censors, - readtng books and viewinl' television rertormanllils to deterniine whether, if permitted, they misht advenely affect the moral of the people throughout the 1119nJ divesified local communities in this vast country. It is true that the ordinance here is on its face only applicable to obscene oz indecent writing.'' It Is also true that this particular 828 LAWYERS lOURNAL November SO, 1980 kind of censorship is considered by many to be "the obnoxious thing in its mildest and least repulsive form. . • . " But "illegitimate an.d unconstitutional practices get their first footing in that way. . . . It is the duty of the couits to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v United States, 116 US 616, 635, 29 L ed. 746, 752, G S Ct 524. While it is "obscenity and inde-cency" before us today, the experience of mankind - both ancient and modern - shows that this type of elastic phrase can, and most likely will, be synonymous with the po1itical, and maybe with the religious unorthodoxy of tomorrow. • Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the judiciary giving it a foothold here. Mr. Justice Frankfu1·ther, concurring. The appella~t was convicted for violating the city ordinance of Los Angeles prohibiting possession of obscene books in a ,bookshop. His conviction was affirmed by the highest court of California to which he couia appeal and it is the judgment of that court that we are asked to reverse. Appellant claims three grounds of invalidity under the Due Process Clause of the Fourteenth Amendment, He urges the invalidity of the ordinance as an abridgment of the freedom of speech which the guarantee of "liberty" of the Fourteenth Amendment safeguards against state action, and this for the- reason that California law holds a bookseller criminally liable for possessing an obscene book wholly apart from any scieil.ter on his part regarding the book's obscenity. The second consti. tutional infirmity urged' by appellant is the exclusion of appropriately offered testimo-ny through duty qualified -witnesses regarding the prevailing literary standards and the literary and moral criteria by which books relevantly comparable to the book in controversy are deemed not obscene. This exclusion deprived the appellant, such is the claim, of important relevant testimony bearing on the issue of obscenity and therefore restricted him in making his defense. The appellant's ultimate contention is th&t the questioned book is not obscene and that a bookseller's possession of it could noi be forbidden. The Court does not reaeh, and neither do I, the issue of obscenity. The Court disposes of the case exclusively by sustaining the appellan't claim that the "liberty'' protected by the Due Process Clause of the Fourteenth Amendment precludes a State from making the dissemination of obscene books an offense merely because a book in a bookshop is found to be obscene without some proof of the bookseller's knowledge touching the obscenity Of its contents. The Court accepts the settled principle of constitutional law that traffic in obscene literature may be outlawed as a crime. But it holds that one cannot be made amenable to such criminal outlawry wtless he is ch11-rgeable with knowledge of the obscenity. Obviously the Court is not holding that a bookseller must familiarize himself with the contents of every book, in his shop. No less obviously, the Court does not hold that a bookseller who insulates himself against knowledge about an offending book is thereby free to maintain an emporium for smut. How much or how little awareness that a book may be found to be obscene suffices to establish scienter, or what kind of evidence may satisfy the how much or the how little, the Court leaves for another day. I am no friend of deciding a case beyond what the immediate controversy requires, particularly when the limits of constitutional power are at stake. On the other hand, a case before this Court is not just a case. Inevitably its disposition carries implications and gives directions beyond its particular facts. Were the Court holding that this kind of prosecution for obscenity requires proof of the guilty mind associated with the concept of crimes deemed infamous, that would be that and no further e'Iucidation would be neiided. But if the requirement of scienter in obscenity cases plays a role different from the normal role of men's res in the definition of crime, a different problem confronts the Court. If, as I assume, the requirement of scienter in an obscenity prosecution like the one before us does not mean that the bookseller must have read the book or substantially know its contents on the one hand, nor on the other that he can exculpate himself by studious avoidance of knowledge about its contents, then, I submit, invalidating an obscenity statute because a State dispenses altogether with the requirement of scienter does require some indication of the scope and quality of scienter that is required. It ought at least to be made clear, and. not left for future litigation, that the Court's decision in its practical effect is not intended to nullify the conceded power of the State to prohibit booksellers from trafficking in obscene literature. Of course there is an important difference in the scope of the power of a State to regulate what feeds the belly and what feeds the brain. The doctrine of the United States v Balint, 258 US 250, 65 L ed. 604, 42 S Ct 301, has its appropriate limits. The rule that scienter is not required in prosecutions fo1· so-called public welfartl offenses is a limitation on the general principle that. awareness of what one is doing is a prerequisite for the infliction of punishment. See Morissette v United States, 342 US 246, 96 L ed 288, 2S Ct 240. Th~ balance that is struck between this vital principle and the overriding public menace inherent in the trafficking of noxious· food and drugs cannot be carried over in balancing the vital role of free speech as against society's interest in dealing with pornography. On the other hand, .the constitutional protection of non-obscene speech cannot absorb the constitutional power of the States to deal with obscenity. It would certainly wrong them to attribute to Jefferson or Madison: a doctrine absolutism that would bar legal restriction against obscenity as a denial of free speech. We have not yet been told that all laws against defamation and against inciting crime by speech, see Fox v Washingt.on, 236 US 273, 59 L ed 578, 85 S ct 883 (1915), are unconstitutional as impermissible curbs upon unrestricable utterance. We know this was not Jefferson's view, any more than ft was the view of Holmes and Brandeis, JJ., the originating architects of our prevailing constitutional law pl'Ootective of freedom of speech. Accordingly, the proof of scienter that is required to make prosecutions for obscenity constitutional cannot be of a nature to nullify for all practical purposes the power of the State to deal with obscenity. Out of regard for "the St8.te's int'erest, the Court suggests an unguiding, vague standard for establishing "awareness" by the bookseller of the contents of a challenged book in contradiction of disclaimer of knowledge of its contents. A bookseller may, of cou1'Se, be well aware of the nature of a book and its appeal without having opened its cover, or, in any true sense, having knowledge of the book. As a practical matter therefore the exercise of the constitutional right of a State to regulate obscenity will carry with it some hazard to the dissemination by a beiokseller of non-obscene literature. Such difficulties or hazards are inherent in many domains of the law for the simple reason that law cannot avai1 itself of factors ascertained quantitatively or even wholly impersonally. The uncertainties pertaining to the scope of scienter requisite for an obscenity prosecution and the speculative proof that the issue is likely to entail, are considerations that reinforce the right of one charged with obscenity-a right implicit in the very nature of the legal concept of obscenity-to enlighten the judgment of the tribunal, be it the jury or as in this case the judge, regarding the prevailing literary and moral community standard! and to do so through qualified experts. It is immaterial whether the basis of the exclusion of such testimony is irrelevance, o:r the incompetence of experts to testify to such matters. The two reasons coalsece, for community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts. Therefore, to exclude such expert testimony is in Effect 'to exclude as irrelevant evidence that goes to the constitutional safeguards of due November 80, 1960 LAWYERS JOURNAL ••• process. The detemrlnation of obacenity no doubt rests with judge or jucy. Of course the teltimoDJ' of a.perts would not displace judge or jury in determining the ultimah question whether the particular book is obscene, any more than experts testifring to the state of the.. art in patent suits .determine the patentabilir of a controverted Ct.'evice. There is no external mea~uring rod of obscenity. Neither, on t11e other hand, la Its rucertainment a merelr subjective reflection of the taste or moral outlook of individual jurors or individual Judges. Since the law th1'0ugh it.a functionaries is 11appl)'i.ng contfmporary communit)' standards" in determining what constitutes obscenitr, Roth v. United States, 364 US 476, 489, 1 L ed: 2d 1498, 1909, '1'1 S Ct 1804, it surely must be deemed rational, and therefore releva'nt to the issue of obscenitr, to allow light to be shed on. what those 11cont"emporary communit7 standards" are. Their interpretation ought not to depend solely on the necessaril1 limited, hitor-mi!!s, subjective view of what, they &re believed to be bj the individual juror or judge. It bears rep<!tition that the determination of otacenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of 11eontemporarry eomm;unity stalld.ards." Can it be doubted that there is a creat difference in what is to be deemed obscf!ne in 1959 compared with what was deemed obscene in 1859. The difference deTives from a shift in community feelinir regarding what is to be deemed prurient or bot pru1·ient by reason of the efffects attributable to this or that par•tieular writing. Changee in the intellectual and moral climate of aoc:ety, in part doubtlesa due to the views and fndinga of spectaliat.s, afford shifting foundatillllUI for the attribution. What may well have been consonant "with mid-Victorian morals, does not seem to me to answer to the underataziding and morality al the present time." United States y Keml.erley CDC NY) 209 F 119, 120. This was the view of Judge Learned Hand decades ago reflecting an atmosphere of propriety much closer to mid-Victori4n dan than is ours. Unless we disbelieve that the literary Pll'· chological or moral 0standards al a community can be made fruitful and illuminating subjecta of i:Dquil'J'" by those who give their life to such inquiries, it was viola~ive of "due process .. , to exclude the eonstitutional17 relevant evidence proffered in this ease. The 1m.p0rtance Of this tne of nidenee in prosecutions for obscenity has been im.preuively attested by the recent debates in the House of Commons dealing with the insertion of sueb a prov1· aion in the enactment of the Obscene Publications Act, 1959, 7 &: 8 Eliz 2, Ch 66 (see 597 Parliamentary Debates, H Comm, cols 1009, 1010, 11>42, 1043 i 604 Parliamentary Debates, R Comm, No. 100 (April 24, 1969), col 808), aa well aa by the most considered thinking on this subject in the proposed Model Penal Code of the American Law In8titute. See ALI Model Penal Code, Tentative Draft No. 6 (1917), sec. 207.10. F~r the reasons I have indicated I would make the richt to introduce such evidence a r&quirement of due process in obacenity prosecutions. :U:r. Juatlee Douglas, eoneurrinc. I need not repeat here all I said in my dissent in Ro~h v. United States, 364 US 476, 608, 1 L ed 2nd 1498, 1580, 77 S Ct 1304, tn underline IDJ' conviction that neither this book nor its author or distributor can be punished. under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the Fir.st Amendment, as the j11dieial and leeislative developments in this eoun.try 1how. Our leading authorities on the subject have swnmar.ized the matter as follows: "In the United States before the Civil War there were few n-ported decisions invol'9inc obscene literature. Thfs of course is no indication that such lit.eratare was not in eirculatlon. at that time; the persistence f1f pornograph)" is entirrely too stronc to warrant such an inference. Nor ia it an indication that the people of the time were totally indifferent to the proprieties of· the lit.erature they read, In 1851 Nathaniel Hawthorne's The Sorwi.e LUr t6t' was bitterly attacked as an Imm.oral book that degraded literature and encouraged social licentiouSJ1es1. The lack of eases merely means that the problem of obscene literature wa& not tbouch.t to be of sufficient importance to justify arousing the forces of the etate to censorship.'' Lockhart and McClure, Literature, The Law of Obscenif.7, and the Constitution, 88 Minn L ReV' 295, 324, 826. Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only grounds for suppressinl' this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punialied only on a showina- not attempted here. lfy view was stated in the Roth Case, 354 US at 514: "Freedom of expression can be suppressed if, and to the extent that, it ia ao eloaely brigaded with illegal action as to be an inseparable part of it. Giboney- v Empire Storage Co., 886 US 490, 498i Labor Board v Virginia Power Co., 314 US '69, 4!1"1, 478. As a people, we ea1',Mt afford to relax that standard. For the test that suppreBSel a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lasciviousneu thought or arouse a lustful desire. The list of books that judPI Or juries can place in that category la endless.'' Yet my view is in the minority; and rather fluid tests of obscenity prevail which require judges to read condemned literatnre and pass judgment on it. Thia rote of censor in which we find ounelvea is not an edifyilll' one. But since by. the prevailine school of thought we must perform it, I see no harm, and perhapa some pod, in the rule fashioned by the Court which ~ quires a showing of sclenter. For It recognizes implicitly that these First Amendment rights, by reason of the strict command in that Amendment-a command that ea.niea over to the States by reason of the Due Process Clause of the Fourteenth Amendment.are preferred rights. What tbe Court does today may possibl7 provide 90me small degree of safeguard to booksellers by making those who patrol bookstalls proceed less high-handedly than has been their custom. Mr. Justice H111rla:11, concurring in part and dissentinl' in part. The striking down of local lel"islation la al.wan serio11S business for this Court. In my opinion in the Roth Case, 864 US at &03-6CB, I a.pressed the view that state power in the obseenit7 field bas a wider scope than federal power. The q11estion whether acien.ter is a constitutionally req11ired element in a criminal obscenity statute ia intimately related to the constitutional scope of the power to bar material as obscene, for the impact of such a requirement on effective proncution may be one thing where the scope of the power to prescribe is broad and quite another where the scope ia narrow. Proof of scientor may entail no gra.t burden in the ease of obviously obscene material; it may, however, become vecy' difficult where the character of the material is more debatable. In my view then, the scienter qusation involves considerations of a different order depend.in& .on whether a state or a federal statute is involved. We have here a state ordinance, and on the meagre data before us I would not reach the question whether the absence of a sclenter element renders the ordinance unconstitutional. I must say, however, that the generalitiea in the Court's opinion striking down the ordinance leave me unconvinced. From the point of view of the free dissemination of constitutionally protected ideas, the Court invalidates the ordinance on tli.e 1T011nd that its .effect may- b8 to induce bookseJlen to restrict their offerings of non-obscene literary lnerchandize tho11gh fear of prosecution for un.wittingl7 havinl' on theit shelves an obscene publication. From. the point of view of the State's interest in p~ (Continu«l tuia:t page) 380 LAWYERS IOURNAL November 80, 1960 U. S. SUPREME COURT ••• (Continued from. page 380) tectinl' ita citizens against the dissemination of obscene material, the Court in effect saya that proving the state of a man's mind 11 little more difficult than proving the date of his digestion, but also intima,!;el that a relaxed .standard of mens 1·ea "W"Ould eatisfy constituttonal requirements. This is fo1· me too roush a balancing of the competing interests at stake. Such a balancing is' unavoidably required in. this kind of constitutional adjudication, notwithstanding that it arises in the domain of liberty of speech and preas. A mol'e critical app1·aisal of both sides of the eonstitutional balance, not possible on the meager matel'ial before us, eeems to me required. before the ordinance can be stl•uck down on this ground. For, as the concurring opinions of my Brothers Black' and Fran~furtet show, the conclusion that this ordinance but :not one embodying aome element of scienter, is likely to restrict the dissemination of legitimate literature seems more dialeptical than real. I am alao not persuaded that the ordinance in question was unconstitutionally applied in this instance merely because of the state court's refusal to admit expert te11timony. I ag1-ee. with my Brother Frankf\lrter that the trier of an obscenity caae must take into account "contemporary community standards," Roth v United Statea, 354 US 476, 489, I L cd 2d 1498, 1609, '1'1 S . Ct 1804. This means that,. reprdless of the elements of the offense under state law, the Fourteenth Amendment does not permit a -conviction such as was Obtained here unless the work complained ef is found substantially to exceed the limits of candor set by contemporary community standards. The eomm.unjt:r cannot. where liberty of speeeh and pres• are at issue; condemn that which it generally tolerates. This being so it :£ullows that due proee1& - '•using that term in its primary !IC!nse or an opportunity to be heard and to depend (a) ••• substantive richt, n Brinkerhoff-1',aria Trust 1l Sav. Co. v Bill, 281 US 6'18, 678, '14 L ed. 110'1, 1112 60 S Ct 451 - requires a State to 0allow s liti1ant in some manner to introduce proof on thi• 1COre. While a State is not debar1-ect from regardinc the trier of fact as the embodiment of community standards, competell.t to judp a challenged work against thOle standard.I, it is not privileged to rebuff all effo11.s tu enlighten 01• persuade the trier. However, I would not hold that any particular kind of evidence must be admitted., specifically, that the Constitution requires that oi·al opinion testimony by experts be heard, There are othel' waya in which proof ean be made, as this very case demonstrates. Appellant attempted to compare the contents of the work with that of other allegedly pimilar publications which were openly published, aold and purchased, and which r~ceived wide general acceptance. Where the1'8 1a a variety of means, •ven though it may be considered that expert testimony ia the most convenient and practicable method of proof, I think it is going to f&r to say that such a. method is constitutionally compelled, and that a State may not conclude, for reason.a .responsive to its t1·aditional doctrinee of evidence law, that the issue of community standards may not be the subject of expert testimony. I know of no case where this Court, on constitutional gJ:ounds, has required a State to samtion a particular mode of proof. In my opinion this conviction is fatally defeative in that the trial judge, as I read the record, turned aside ewl"JI attempt by appellant to introdUC8 evidence bearing on community standards. The exelusicmary rulings were not limited to offefed expeit testimony. Thia had the effect of depriving appellant of the oppol'tuaity to offer any proof on a eonst.i.iutionally relevant issue. On this sroll'Dd I would revene the judpient below, and remand the case· for a new trial. ACCUSED MAY REMAIN AT LIBERTY UNDER ORIGINAL BOND AFTER CONVICTION AND DURING APPEAL In a preceden't-provoking decision, Judge Jesus P. Morfe of the Court of First Instance of Linpyen, Panpsinan recently ruled that an accused may continue to remain at liberty under hl.s original ball bond after the rendition of judgment of conviction aad duriq the period of" appeal, In its effect, Judge Morfe's ruling departs from the standard judicial -practice of placinl' the accused into the custody of tha law immediately after the reading of the judgment of conviction to him, UDleu then and there he appeals the decisiori and files a new bail bond for his provisional release durine the pendency of the appeal. · Judge Morfe made the ruling in a criminal ease fo1· estafa (People of the Phil. vs. Floro.C. Garcia and Alfredo R. Balqtas, Crim. Cue No. No. 91267) followinl' the oral manifestation of the coUllHl for the two accused the~ of their intention to file a motion for reconaideration of the decision of conviction that was read in open court to the ac~used, accompanied wi~ the vei·bal motion that in the meantime the accused be allowed to remai_n at liberty ~nder their 01i1inal bail bond. In cranting said ve1·bal motion of the accuaed, Judp Morfe reasoned. out that "to send an accused. to jail for custody within the reglement&l·y fif~ day period within which he can appeal the decision p1"0vided in Section 6 of Rule 118 will be tantamount to making him serve the sentence before it becomes executory". But an accused, Judge M.orfe pointed out,. cannot be so committed "unless he waives in writing his right to appeal and forthwith surrenden hinwelf for the e:icecution of the sentence imposed on hlm. or his bondsman surrenders him to the Court before the lapse of the period to appeal." He also pointed out that as the bondsman of the accused did not appear at the i-eading of the judgment of conviction and did not surrender the accused to the court pursuant to' aec. 16° (a) of Rule 110, "the bondsman will contiaue under the obligation of its bail to see to it that the aecused appear before the court after the fifteen-.d.ay period mentioned in section 6, Rule 118 if the accused neither perfect his appeal during aaid period nor voluntarily surrender himself to the court for execution of its decision." Judp Morfe also said that the term ''conviction" contemplated in See 4, Rule 110 which &'ives rise to the ineffectivity of the ol'iginal bail bond and the detention of the accused after the reading of the judgment of conviction, is a "conviction." that has become ripe for execution bf virtae of the lapse of the fifteendq period provided in sec. 6 of Rule 110. Thia conclusion finds support in Sec. 1 of Rule 118, which provides that 'ham all /ioo.l ;11dgment• of the Court of First Instance or cou1·ts of similar jurisdiction, and in all eases In which the law now providu for appeal• from said courts, an appeal may be taken to the Court of Appeals or to the Supreme Cou1·t as hereinafter preselibed.' The use of the term 'final judgment' in sec. 1 of Rule 118 implies that the juclament therein contemplated is one that has become 1·ipe for execution by reason of the lapee of the fifteen-day period provided in sec. 6 of the Rule 118. Consequently, a convicted accused must begin to sei-ve his sentence on the 18th day following p1·0mul1ation of judgment, un.leu he perfect hi& appeal before the close· of office hours of the lfith day." Ni>vember 30, 1960 LAWYERS JOURNAL 331