Earl Warren: Number 482, National Labor Relations Board, Petitioner, verus Fant Milling Company. Mr. Manoli, you may proceed.
Dominick L. Manoli: May it please the Court. This case is here on writ of certiorari to the Fifth Circuit. The National Labor Relations Act provides that when every charges is filed alleging the Commission of unfair labor practice, the Board may issue a complaint stating the charges in that respect. The principal question here is whether the Board's complaint must be confined to the allegations of the charge or whether the complaint may include matters or events which occur after the filing of the charge and pending the Board's investigation of that charge. The court below answered this question in the negative. And I shall faithfully summarize the facts which give rise to our problem here. In 1953, the Board certified the union which is involved in these proceedings as the bargaining representative of the company's employees. Thereafter, between August of that year and November of the following year, representatives of the union and of the company engaged in a series of 20 almost -- about 20 conferences for the purposes of arriving a collective bargaining agreement but they were unable to do so. Among the principle obstacles that prevented agreement were the company's insistence upon a contract which would give it the unilateral right during the life of the contract to either raise or lower the wages that were agreed to in the contract. The company's refusal to incorporate in any agreement provisions of the respect to existing employment practices at the plant despite the fact that some of these had been in existence for some time and despite the further fact that the company said that it had no present intention of changing them. And -- and further, the company's insistence upon a no-strike provision with a -- with a monetary penalty for its breach, coupled with the company's refusal to give to the union the normal quid pro quo for that kind of a -- an agreement, namely, a grievance procedure with arbitration. The company insisted that any grievances should be ultimately be -- ultimately be resolved by the presence of the company. The atmosphere of these negotiations was not enhanced when, in April of 1954, the company made certain individual wage adjustments which the union had indicated that it want to discuss but the company did this, however, without first notifying or consulting with the union that it was putting these changes into effect. In May of 1954, the union filed a charge with the Board and this charge alleged that the company had engaged and was engaging in unfair labor practice within the meaning of Section 85 of the Act, that's the bargaining provision of the statute. And also that the company on or about November 20th, 1953 had refused to bargain with the -- with the union collectively. The Board's Regional Director, with whom this charge was filed after investigation, informed the parties that he was declining to issue a complaint because in his view, the -- the investigation did not disclose sufficient evidence to support the issuance of a complaint. The union thereupon appealed from the Regional Director's action to the Board's General Counsel. While the appeal was pending before the Board's General Counsel, the company and the union continued to negotiate. And then October of 1954, the company unilaterally without prior notice or consultation with the union put into effect a -- a general wage increase for all of the employers and after having done so, notified the union. In fact, the union discovered it quite fortuitously through the employers of another plant. The negotiations continued after this unilateral action on the part of the employer for two more meetings. And on the last of these meetings, the company abruptly terminated the negotiations when it notified the union that it had worth -- word-of-mouth information that the union no longer represented a majority of the employees in the plant. The union reported these matters to the Board's Regional Director. And shortly thereafter, the Board's Regional Director wrote to the parties, both to the union and to the company, that he was withdrawing his earlier refusal to issue a complaint on the union's charges and that the matter would be investigated further. In August of that year, this was some time in January of 1955, in August of that year, the Board's General Counsel notified the parties that in view of the Regional Director's action withdrawing his earlier refusal to issue a complaint that all further inquiry should be addressed to the Regional Director. And -- and shortly thereafter, the Regional Director issued a complaint against the company. And the complaint, in relevant part, alleged that the company on and after November 21st, 1953 had refused to bargain collectively with the union in violation of the statute and further that on or about October 7th, 1954, 1954, the company had put into effect the unilateral wage increase without prior notice to the union. Upon the record that was made on this complaint before the Board's Hearing Officer, Hearing Examiner which also included the transcript of the negotiations between the company and the union that continued for nearly 15 months, the Board found that the record clearly evidenced the company's refusal throughout the course of the negotiations to bargain in good evidence -- clearly evidence the company's failure to bargain in good faith and that this conclusion was confirmed by the unilateral wage increase of October 1954.
Speaker: Could I ask you a question?
Dominick L. Manoli: Yes.
Speaker: The charge, as I understand it, was not the unilateral wage increase but the failure to bargain.
Dominick L. Manoli: The unilateral wage increase occurred after, after the --
Speaker: Yes.
Dominick L. Manoli: -- after the charge was filed.
Speaker: But it turns on the question that you come into is with when the six-month period did arise. And -- that's why I want to know what the charge is.
Dominick L. Manoli: The charge, Your Honor, alleged that, as I said a moment ago, within general terms that the union -- that the company had engaged in unfair labor practices and was engaging within the meaning of (a) (5). And further, that on or about November 21st, the company had refused to bargain collectively with the union. Now, I'll -- the six months provision to which Your Honor is referring to provides that the Board shall not issue a complaint based upon charges occurring more than six months --
Speaker: Six months.
Dominick L. Manoli: -- prior to the filing of the charge. And I will come to it later --
Speaker: All right.
Dominick L. Manoli: -- that point.
Speaker: Let's get it up then.
Dominick L. Manoli: Now, because there has been some confusion as to the nature of the Board's findings with respect to the company's good faith, I believe it will be helpful because this will be significant later on in the course of the argument that I found to make. If I may read very briefly, this is at page 119 of the record, the page upon top, 119, the Board said, "We have no difficulty in determining the respondent's bad faith throughout these protracted negotiations particularly in view of the respondent's unilateral effectuation of a general wage increase early in October 1954 while the negotiations were still in progress but without consultation with or even notice to the union," and then skipping over to page 128 in order to fill out this, at -- on page 126 rather at the bottom of that page, the Board in conclusionary term said, "We find rather that the giving of this general increase while negotiations were still continuing and in complete disregard of the union's representative status provide the final insight into the respondent's conduct of negotiations with the union.” It clearly shows that after November 21st, 1953, the cutoff date determined by the General Counsel pursuant provisions of Section 10 (b), respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement over the union. Now, the court below read the Board's decision to mean and parenthetically, I may say that we think it was an error, the court below read the Board's decision to mean that a part from the unilateral wage increase of October 1954, the record of the negotiations between the company and the union would not support, would not support a finding that the company had bargained in bad faith during these negotiations. Accordingly, accordingly, the critical question for the court below became whether the Board's complaint could take cognizance of the unilateral wage increase which occurred after the filing of the union's charge. The answer which the court below gave is this, “The principal opinion of the court below said that the Board's complaint must be confined to the specific allegations of the charge and that the Board's complaint may not take cognizance of the events which occur after the filing of the charge.” The concurring opinion by Judge Hutcheson took the position that the unilateral wage increase of October was a completely new and independent cause of action unrelated, unrelated to the subject matter of the charge and that therefore, the Board was powerless to take that into consideration, Judge Reeves who dissented -- dissented on both counts. It is our position that the Board may take cognizance, the Board may take cognizance of the events which occur after the filing of the charge which are either related to the subject matter of the -- which are either grow out of or are related to the subject matter of the charge pending the Board's investigation of the charge and secondly that the unilateral wage increase which took place here after the filing of charge is related to the subject matter of the charge which was filed in -- in May of 1954. Now, let me address myself first to the second, what I regard as the subsidiary question, namely, whether the unilateral wage increase, which occurred after the filing of the charge, was related to the subject matter of the union's charge. The charge, in effect, called upon the Board to investigate the bargaining relationship between the company and the union. This unilateral wage increase took place in the course of that bargaining relationship. Indeed, it went to the very heart of that relationship for as this Court has set such action of that kind on the part of an employer constitutes the very antithesis of collective bargaining and a negation, and a negation of the union's representative status. More than that, the unilateral wage increase was a further reflection, a further manifestation and further continuation, if you will, of the company's persistent attitude throughout the negotiations on the base which lead to the charge of the company's persistent attitude of maintaining a completely freehand with respect, with respect to the terms and the conditions of employment. We think that in every meaningful, in any meaningful sense, it must be said that the unilateral wage increase of October is -- directly bears upon the bargaining relationship which the Board was called upon to investigate and is directly related to us. The argument is made, however, that since the Board did not find that there was an unfair labor practice on the basis of the pre-charge conduct, that the post-charge unilateral wage increase is not related, is not related to the pre-charge conduct. Apart from the fact that this argument misreads initially, it misreads initially the Board's -- the Board's decision in this case because, as I said a moment ago and this is the one with the reasons why I read the Board's decision, the Board found that the company, throughout the course of these negotiations, had manifested at bad faith. The argument is made that they say on this reading of the Board's -- on this reading of the Board's decision that there was no unfair labor practice on -- during -- committed during the time preceding the charge. The argument is made that the post-charge unilateral wage increase is not related to any unfair labor practice which is a subject of the -- of the charge. As I say, this does not only misreads the Board's decision but it doesn't hold any -- doesn't -- the argument doesn't have any merit because the critical factor is whether, for our purposes of relationship, for determining relationship in this context, the critical factors whether the post-charge events or matters have immaterial and logical connection with the subject matter, with the subject matter of the charge. Now, that connection exist or does not exist, it seems to us, without regard to what the Board's ultimate conclusions may be as to the legality or illegality of the conduct in question. Now, let me turn now to what we believe is the principle question, the more important question in this case, namely, whether the Board may take cognizance of events or matters which occur after the filing of a charge but which are grow out of, as we or are -- as in this case, or are related to the subject matter of the charge. The principal opinion below, as I have indicated, took the positions that the complaint of the Board must be confined, must be confined to the subject -- to the -- the allegations of the charge and that the Board may -- may not look or take cognizance of the events which occur after the filing of the charge. We believe that this view rest upon a mistaken conception of what a charge is, what a complaint is, and what the Board's role is in the investigation on the prosecution of charges. The statute provides, as I briefly alluded to a moment ago, the statute provides that when -- whenever a charge is filed alleging that a person is engaging or has engaged in unfair labor practices, the Board is empowered to issue a complaint stating the charges in that respect. The statute also provides that the Board shall not issue a complaint with respect to unfair labor practice that occur -- that have occurred more than six months prior to the filing of the charge. Now, a charge under the statute may be filed by anyone. It is all compiled by people who, in the nature of things, have limited perception, understanding of the conducts to which they are complaining, its ramifications and its legal significance. A charge is not a pleading. All that the charge does is merely set the Board's machinery in the motion. Now, once the -- the charge has been filed and the Board's machinery has been set in motion, then the -- the burden, the responsibility for investigating the charge rest with the Board. And if the Board determines on the basis of its investigation that a complaint should issue, like the complaint issues and the statute also expressly provides that the Board may amend that complaint at anytime prior to the issuance of a final order. The statutory scheme, it seems to us, suggest that it is the Board's obligation to frame the issues between itself and the party charged and the complaint serves this purpose. It has often been said that the case between the Board and the particular respondent starts not with the charge really but actually -- but rather with the complaint. And this, we think, is in keeping with the underlying purposes of the statute, namely, that the Board's function is to vindicate public rights and not private rights. Now, if the court below is right that the Board must stick closely, must stick closely to the allegations of the charge and be oblivious, and be oblivious to related conduct whether it occurs before the filing of the charge or after, that, it seems to us, that the result is, the result is that the vindication of the public rights which the statute has in mind rest largely, upon the necessarily and often limited perception, judgement and certainly, inadequate investigation of a private party rather upon the informed judgement of the Board after a full investigation. More than that, I think that such an artificial restriction upon the Board's power would often hamper the Board in addressing itself in a comprehensive and meaningful manner of fashion to the picture which its investigation has disclosed. And I think the instant case here illustrates that point. Here, the charge, in effect, called upon the Board to investigate the bargaining relationship between the company -- company and the union. That relationship was a continuing one. It did not end with a filing of the charge but continued thereafter. And yet, the court below would say to the Board, that the Board must stop in its investigation of a continuing course of conduct must stop with the date of the charge, with the date of the charge --
William J. Brennan, Jr.: Well, Mr. Manoli, in -- in fact this -- are there often variances between the allegations of the complaint finally issued and the contents of the charge?
Dominick L. Manoli: Do we have --
William J. Brennan, Jr.: Variances, do you have?
Dominick L. Manoli: Do we have this problem very often?
William J. Brennan, Jr.: Yes.
Dominick L. Manoli: Yes.
William J. Brennan, Jr.: Do you have variances between the allegations of complaints --
Dominick L. Manoli: Yes.
William J. Brennan, Jr.: -- and the matter specified in the charge?
Dominick L. Manoli: Oh, we do have that. Yes, Your Honor. Of course so when I -- we speak of variance, I don't -- I --
William J. Brennan, Jr.: Well, what I'm trying to get at is --
Dominick L. Manoli: The Board would not introduce a new and unrelated subject.
William J. Brennan, Jr.: No, but how -- how specific is the -- of the allegations of the complaint as to the items which constitutes, say an -- an (a) (5) charge?
Dominick L. Manoli: They would often be in terms of the company on and after such -- such date has refused to bargain collectively with the union and no more than that.
William J. Brennan, Jr.: Not more than that.
Dominick L. Manoli: That's right.
William J. Brennan, Jr.: Even though the charge might be that in such in such a date --
Dominick L. Manoli: That's --
William J. Brennan, Jr.: -- naming only one date.
Dominick L. Manoli: That's right. The complaint will also be in very general terms that, of course, it always has to be within a period that does not go beyond more than six months --
William J. Brennan, Jr.: Yes.
Dominick L. Manoli: -- prior to the filing of the charge.
William J. Brennan, Jr.: Well, now when you -- when you have a hearing on -- on a complaint --
Dominick L. Manoli: Yes, sir.
William J. Brennan, Jr.: -- is it the practice to hold the Board rather strictly to proofs of the allegation of the complaint?
Dominick L. Manoli: Well, there -- if there is a -- an allegation of complaint that the company has refused to bargain collectively, obviously, that open up -- opens up a wide area of investigating the course of the negotiations between the company and the -- and the particular union. And there can sometimes new matter maybe introduced and the statute expressively permits the Board to amend its complaint at any time prior to (Voice Overlap) --
William J. Brennan, Jr.: Well, what -- what about in -- in the trial again, in the hearing on a complaint --
Dominick L. Manoli: Yes, sir.
William J. Brennan, Jr.: -- is that the Board's practice to introduce testimony of event subsequent to the date of the charge if relevant to the --
Dominick L. Manoli: Oh, yes.
William J. Brennan, Jr.: -- charge, to the allegations of a complaint?
Dominick L. Manoli: Yes, indeed. In -- not only do we introduce matters which, we think, are related to the subject matter of the -- of the charge which have occurred after but also, of course, we obviously will use witnesses and documentary evidence to support that kind of an allegation. That happens quite often. And we haven't had --
Charles E. Whittaker: (Voice Overlap) --
Dominick L. Manoli: Yes, sir.
Charles E. Whittaker: Am I right in understanding (Inaudible) compliant is the one relating from (Inaudible) six months prior to the filing of the charge down to the date of the hearing?
Dominick L. Manoli: Yes, sir.
Charles E. Whittaker: And that is the (Inaudible) down to date of hearing.
Dominick L. Manoli: Yes, sir. Now, as I said a moment ago, I think that the restriction which the court below has imposed upon the Board's power with respect to this complaint will seriously hamper -- will seriously hamper the Board in addressing itself in a meaningful manner to the -- in a comprehensive matter to the picture which this investigation discloses and this case here, as I say, illustrates that point because here, here, the court below would have the Board stop, would have the Board stop short with the date of the charge despite the fact that the negotiations between the company did not end, did not end with the filing of the charge but continue thereafter. In other words, the court below is saying that the Board can only look, can only look to that piece of negotiations which preceded the filing of the charge but did not end, did not end with the filing of the charge and despite the fact, as I have indicated earlier, what happened after the charge is directly related. In fact, it's part of a continuous and unfolding picture of the negotiations between the company and the union. Now, we don't say, we don't say that the Board has a completely freehand in framing its complaint that it -- that the Board may go off on a frolic of its own and introduce new independent and unrelated matters, matters that are unrelated to the subject matter of -- to the subject matter of the charge. As I said a moment ago, the Board is powerless to act independently of a charge. We do need a charge in order to set our machinery into motion and presumably that kind of scheme requires a degree of correlation between charge and complaint. But we submit that that degree of correlation should not be converted into a straitjacket so as to --
Felix Frankfurter: Can I ask you -- can I ask you (Inaudible) before -- what you've just said that the complaint stand as it will go for appeal --
Dominick L. Manoli: Yes, sir.
Felix Frankfurter: -- will be unrelated to what was in the complaint? Why is that so in light of the general guide which you asked us today in mind, namely, that the Board represent the public interest which an individual starts by -- why (Inaudible) limitation is so as between a charge and a filing of a complaint, is there any medium -- medium or norm of time between (Inaudible) promptly between the party of the complaint, the charge and the complaint, what is the usual time? Months, weeks?
Dominick L. Manoli: Oh --
Felix Frankfurter: Varies greatly?
Dominick L. Manoli: It -- I think we have some figures on this, which I'm -- which I do not have in my own mind.
Felix Frankfurter: But where is it? What -- what magnitude? Months (Voice Overlap) --
Dominick L. Manoli: Oh, I would say within a matter of two or three months at the outside --
Felix Frankfurter: Well, if --
Dominick L. Manoli: -- then we would be issuing a complaint.
Felix Frankfurter: -- if during those -- during that period wherein which I presume inquiries make, studies make by the Board, is that right?
Dominick L. Manoli: Yes, sir.
Felix Frankfurter: And they are developed new kind of disobedience in violation of the -- the Taft-Hartley or the Wagner Act, what -- what is the reason why that cannot be incorporated in a complaint?
Dominick L. Manoli: Well --
Felix Frankfurter: What is the bearing? In other words, what is the legal relation if the complaint is not to be bounded by the (Inaudible) by the complaint? Why should it not be free to make any charges as --
Dominick L. Manoli: Yes.
Felix Frankfurter: -- seems appropriate.
Dominick L. Manoli: Well, Your Honor, I might say that at one time, the Board took exactly that position that it felt that once there was a charge filed that the complaint that simply covered the whole waterfront without being limited at a specific charges of the allegations. We had a little rough flooding with that proposition in the courts particularly here in the Fifth Circuit and whether it was as a consequence of that -- of those decisions or whether it was as a result of further study by the Board, the Board has finally narrowed its position on this and its present position is and its position which governs this case -- would governs this case that where the post-charge events are -- grow out off or are related, or are related to the subject matter of the charge, the Board will take cognizance of those matters in its complaint and its decision. And we -- we believe that the Board's position in this respect is supported by this Court's decision in the National Licorice case.
Felix Frankfurter: Have we -- have we spoken at all on this subject?
Dominick L. Manoli: Yes.
Felix Frankfurter: I'm not saying the original position be -- be more rational with the present one.
Dominick L. Manoli: Well, we [Laughs] -- well, I hope that the larger includes the lesser [Laughs].
Felix Frankfurter: Yes, it doesn't involve any law.
Dominick L. Manoli: The -- you asked me, Mr. Justice Frankfurter, that you spoken on this, yes. You spoke -- the Court spoke on this problem in the National Licorice case which was decided in 1940. Now, it's true that that case was decided under the original act and -- but the language, the controlling language is the same. And in that case, the Court said that there was nothing in the statute which warranted a restriction upon the Board's power to include, in its complaint, matters which either grew out of or are related to the subject matter of the charge. Now --
Felix Frankfurter: The case has so many important points. I didn't know that that was one of them.
Dominick L. Manoli: Yes, it is, Your Honor.
Felix Frankfurter: But you know, I don't mean to say it wasn't said in there.
Dominick L. Manoli: Yes.
Felix Frankfurter: I'm sure it wasn't if you said so but I didn't know that was one of the controverted question in there. Was that an issue?
Dominick L. Manoli: Yes, it was. Yes, the Court addresses itself fully to that -- to that issue.
Felix Frankfurter: Well, then, couldn't you cite that case in the record?
Dominick L. Manoli: Well, Your Honor, the -- we could, I think [Laughs], except that for one factor, and I believe Mr. Justice Harlan has already alluded to this, and that is that while we think that controlling language remains the same in the new statute as it was in the old statute, there is this now in the new statute a provision which says, which says that the Board may not issue a complaint based upon charges occurring more than six months prior to the filing of the charge. And suggestions has been made here that here, there was no charge with respect to this post-charge unilateral wage increase and in some fashion or other, this particular restriction bars the Board from taking cognizance of it. Now, I frankly think, Mr. Justice Harlan, that that provision has got nothing to do with our problem in this case. What that provision is, is a statute of limitations which simply says, which simply says that the Board may not base an unfair labor practice finding on matters which occurs six months prior to the filing of the charge. It's a -- they say it's a statute of limitations which cuts off, cuts off that liability with respective matters that have occurred more than six months prior to the filing of the charge. This Court's decision in National Licorice was on the books when Congress considered this -- considered the amendments and there is not a suggestion, there is not a suggestion in the legislative history of the limitations proviso that Congress, that Congress intended to -- to wipe out, to amend in anyway the rule which this Court had laid down in the National Licorice case.
Speaker: Well, the Courts of --
Felix Frankfurter: I can't --
Speaker: Excuse me. The Courts of Appeals has split up the problem.
Dominick L. Manoli: On our last problem, yes, Your Honor.
Speaker: Fifth Circuit and Third Circuit.
Dominick L. Manoli: Yes, we --
Speaker: So that it does have some peripheral relevance to this.
Dominick L. Manoli: A peripheral at best, at best but I think when you finally come down to it, at least we have come up for the answer that we don't think it really has any bearing upon this problem.
Speaker: Let me put the question that bothers me directly to you.
Dominick L. Manoli: Yes, sir.
Speaker: These charges were -- were based on an unfair labor practice beginning in -- in August of 1953, is that right?
Dominick L. Manoli: Beginning November --
Speaker: (Voice Overlap) --
Dominick L. Manoli: -- on or about November 20th, 1953.
Speaker: November 1953. The charges were -- the complaint was filed when?
Dominick L. Manoli: May 20th, 1954.
Speaker: Well, that's much more than six months.
Dominick L. Manoli: If you -- if you begin from the date November 20 -- let me add this, Your Honor. That the -- the charge says on or about November 20th.
Speaker: Yes.
Dominick L. Manoli: Now, the argument is made on the other side that this means November 20. There's no other date and that therefore, that charge is filed more than six calendar months after. The charge was filed more than six calendar months after November 20th. But I don't believe that we should read the phrase as it occurs in the charge on or about November 20th was such a constricting narrowness, after all, the charge is not a will that we're construing. The phrase on or about November 20th gives us a certain amount of leeway. Now, let me answer what I think is fact of your question, Mr. Justice Harlan. We don't particularly have to rely upon what occurred prior to November 20th because there were only three conferences that took place between the company and the union prior to November 20th, 1953. After November 20th, 1953, there were seven conferences prior to the filing of the charges. And during those seven conferences the position of this company with respect to the bargaining of your changes had been laid out on the record and made perfectly clear so that the Board does not have to look back to the three conferences that occurred more than six months prior to the filing of the charge. Do I answer your question, sir?
Speaker: Oh, I understand you. I understand you.
Earl Warren: Mr. Fisher.
O. B. Fisher: Mr. Chief Justice and if the Court please. First, by way of introduction in this case, I want to say to the Court that counsel here in this Court are the counsel who conducted the negotiations which are brought in to question. There is no embarrassment on the part of the counsel by reason of having engaged in those negotiations notwithstanding the charges that are made by the Labor Board. Fant Milling Company is a relatively small industry engaged in the processing of wheat and grain manufacturing flour and feed, during -- was two plants, one in Sherman and one McKinney, Texas both near Red River. The number of employees within what referred to as the bargaining unit or the hourly paid employees were about 200 at the time of the commencement of this proceeding that's now reached this Court. The union sought representation of those employees. And in due course, an election was held. And approximately, 180 of the 200 employees voted in the election. Those voting for representations by the union outnumbered those voting against representation of -- by the union by about eight or exactly eight, I believe. Counsel in this case in conducting or participating certainly more expressive and in participating in the negotiations made subject matter of this litigation. Sincerely as the capacity of counsel would permit attempted to serve the intent and purpose of the National Labor Relations Act thereby serving the public and likewise to the extent of the capacity of possessed attempted to serve the employees of Fant Milling Company as a part of the public and of course, attempted to serve Fant Milling Company are declined. Now, so that it may not be overlooked by the Court, at the outset, it is an adjudicated fact in this case, so adjudicated by the Fifth Circuit that in this matter, this country milling company paid two local attorneys, one living in Paris and one in Sherman against the experts of who were representing the union in the negotiations or the employees, if you please. So let us not be misled by the statement of counsel for the Board or General Counsel rather with reference to charges being made by uninformed persons or persons who are not informed to the extent that they know how to frame charges.
Earl Warren: We'll recess now, Mr. --


Earl Warren: Number 16, Alfred E. Butler versus the State of Michigan. Mr. Robbins.
Manuel Lee Robbins: Yes, sir. May it please the Court. In the early summer of 1954, Mr. Butler, the appellant in this case, sold a book to an adult police officer in Detroit, Michigan. For this, he was promptly arrested, prosecuted and convicted under a statute which, from the very outset of the litigation to this very day in Court, we have contended is an invasion of the freedom of press and of due process of law. After our conviction in the trial court, we sought leave to appeal to the Supreme Court of Michigan and the prosecutor, in consenting to the appeal, certified to the Court that in his opinion, the statute needed clarification. But the Supreme Court of Michigan denied our application for leave to appeal and we had no clarification. Now, before I start on the main argument of the case, I should like to just clear the atmosphere for a second to indicate what is not in this case. We fully recognize that this is not a case of prior restraints. We were convicted for selling a book. Second of all, we also recognized that a properly drawn statute forbidding and punishing the distribution of obscene literature, just as simply as that, would be certainly valid under the exercise of a state of police power. In other words, if the statute said it is a crime to distribute obscene literature, we say that that would be valid under the state police power.
Felix Frankfurter: You mean counting those words?
Manuel Lee Robbins: Pardon me, sir.
Felix Frankfurter: You mean express -- just as your expression that you could --
Manuel Lee Robbins: Well, it -- frankly, it doesn't have to be verbatim repetition --
Felix Frankfurter: But I just want to --
Manuel Lee Robbins: -- of my words but the mere proscription against the sale or distribution of obscene literature and not with a lot of other qualifying phrases after it. It is not my opinion make it unconstitutional.
Felix Frankfurter: (Voice Overlap) whether -- and to infer from that that you would regard the words "obscene" period, as satisfying the (Inaudible)
Manuel Lee Robbins: I would, sir.
Felix Frankfurter: All right.
Manuel Lee Robbins: Now, the statute that we have here is a far cry from that. But before I get to the statute, I should like to call the Court's attention to the book itself. I have in my hand here a facsimile copy of people --
Stanley Reed: Before -- before you get in to --
Manuel Lee Robbins: Yes, sir.
Stanley Reed: -- saying what you're clearing out, is that also include whether or not the book as a whole is obscene?
Manuel Lee Robbins: I'm coming to that, Your Honor. That is a -- a point. I am taking the position that as far as judicial -- as far as our statute, I'd come to that later but I'm going to develop the point to the statute which -- containing statute is not constitutional. The book must be judged as a whole.
Speaker: (Inaudible)
Stanley Reed: You -- you have an insertion in your brief, as I understand it, that the Court did not find the book as a whole obscene.
Manuel Lee Robbins: I -- that is true, sir. I do say that in my brief.
Stanley Reed: And would you argue that question?
Manuel Lee Robbins: I will argue that question.
Felix Frankfurter: But that's a very different question from whether a statute inquisitor outgoing or make it define itself (Inaudible) an obscene book.
Manuel Lee Robbins: If it's just as --
Felix Frankfurter: He -- does the statute is sufficiently is not offending against the ruling (Inaudible)
Manuel Lee Robbins: That's right, sir.
Felix Frankfurter: All right.
Manuel Lee Robbins: I --
Felix Frankfurter: So that one has not to look at any book just the statute can save. The statue itself is all right.
Manuel Lee Robbins: I say -- I --
Felix Frankfurter: But -- no -- no, that's a different question.
Manuel Lee Robbins: We are on a different question. I have a different statute and I'm not --
Felix Frankfurter: I --
Manuel Lee Robbins: -- claiming that this is just an obscenity statute.
Felix Frankfurter: -- I'm not.
Manuel Lee Robbins: All right. Now, so far as the book is concerned, I have in my hand a facsimile copy of people's exhibit 1 which in the record of this case. This is a paperback book. It sells for 50 cents. I'm happy to note that the covers of this book do not exhibit any sexually stimulating material. The front cover is a serious parade of the sad and curious figures of the leading characters in the book. The back cover has got a comment about the book, by the side, the review of literature. The front page has got some more reviews of the book, wholesome in their praise. And on the whole, it would be very harder to view this book as an attractive nuisance for alluring children into or anyone else for that matter into any salacious reading. Now, I should like to point out that much was made and much is presently made in my adversary's brief of the method of distribution of this book and it take a sort of a separate rule for paperbound books as against hardcover books. Now, the only sale in the record of this case was a sale to an adult police officer. There isn't a scintilla of evidence anywhere in this case that it was sold to any child or read by any child. Now, there was evidence that it was distributed nationally throughout the country without any stimulating promotion campaign that it appears on open racks and stores that these stores are drugstores, or 5 and 10 cents stores, or department stores, or cigar stores, or news stands. And it also appear that in some of these stores, school supplies may be sold. Now, from that little -- little bit of kernel comes the whole thesis that this book must necessarily, therefore, have been channeled or could be channeled towards an intended for adolescent reading only.
Speaker: (Inaudible)
Manuel Lee Robbins: No, sir. This is a word per word -- virtually word per word. There were few punctuation changes of some sort but other than that, it is practically the same book, and I'm coming to the original edition of this book. But there isn't anything in the record that even approximates the quantitative analysis of proof that this book was channeled towards or intended for distributions to minors. Gosh knows that adults can go to 5 and 10 cents stores and drug stores for many more reasons than children. Now, it so happens at the time of the trial of this case, the hardcover edition of this book was in the public library of Detroit. At the trial, the chief of the book selection committee of that library testified that in their opinion, they thought this was good literature that the public library ought to have it but because there were certain passages in it which were sexually stimulating, they put it on what they called the restricted shelf. That meant that that while it was listed for the home reading -- on home reading, that meant that adults could come to the library and ask for it and get it. There was no problem about that but it was not on the open shelves where children might get it. Now, just take the position, of course, that if the library had a copy of the hardcover, which you would pay $3 or $4 for and it was -- you wanted to replace it or get a new one, if they wanted us to get this -- the same book for 50 cents and save the library's money and wanted this edition of the book, nobody would dare to sell it to him. Now, the book itself, we've talked about the distribution and the format of this book. The book itself is a -- has been paraphrased in my brief, it has been elaborately commented upon on the record but frankly, it's a story of a conflict within a man. It's the story of a man who has tasted worldly life and earthly pleasures and as a student of musicology comes to this Benedictine monastery in the countryside of France to study the Gregorian chant. He lives in the monastery and then from there, for the first time in his life, he feels a different spirit evolving about him, he feels a call to an inner peace and -- and happiness. He starts to realize that his life head him to fleshly as it may have been is not what he is ultimately content with and he has this conflict developing in himself with how much of the world will he give up and how much peace and security are represented by the monastery. Ultimately, he is one through the sanctity but not without some tempestuous problems on route. Now, of course, he reminisces this from time to time as to his prior pleasures and dalliances and, of course, from time to time he lapses away from the monastic life. Now, some of this language and some of the description, I admit, is in -- of -- of earthy nature. It is realistic writing. It is of the naturalistic vein. There is some discussion and treatment of sex situations. There was also the blunt and earthy idiom of the French countryside. But view it as a whole, as I will argue later and say now, as it must be, these were in parts that were indigenous to the story and at least fairly, reasonably connected with its plot. Now, at the trial when our constitutional objections were overruled, we went ahead and defended this book on the merits. We -- the two eminent professors, one from the University of Pennsylvania and one from the University of Michigan, the very area where the prosecution was brought, testified that in their opinion, this was a serious work. It was excellent writing. It was high -- highly ethical -- ethically motivated novel. And that viewed as a whole and by its dominating -- dominating themes, it was a good piece of literature. It would be hard to fathom under that testimony how our proof beyond a reasonable doubt could be established, but we have to look to the statute itself to find out exactly how we were convicted. The statute says that if the book contains language in description which is obscene, and I'm coming to the other point just take it from obscene, it is a crime to distribute that book. Now, I don't have to labor the point to -- to show that we certainly contained in isolated aspects, certain -- certain language which of -- is not related to the whole might be offensive. But if -- the -- the statute in this case permits a conviction for the containing, not -- and does not, in the realistic sense, consider that the book must be treated as a whole and by its dominant theme. Now --
Felix Frankfurter: Why don't you go to the statute?
Manuel Lee Robbins: Pardon me, sir?
Felix Frankfurter: Why don't you take us to the statute?
Speaker: (Voice Overlap) --
Manuel Lee Robbins: The statute appears on page 5 of my brief, Your Honor.
Felix Frankfurter: But as I understood you, the defect here is in the statute, isn't it? You started out by saying this is not an ordinary obscenity.
Manuel Lee Robbins: That's right, sir.
Felix Frankfurter: So, you're attacking on the statute?
Manuel Lee Robbins: My attack is on the statute --
Felix Frankfurter: All right.
Manuel Lee Robbins: -- on its face and --
Felix Frankfurter: Then go to the statute and found what it is.
Manuel Lee Robbins: All right. Now, the -- the statute is rather lengthy one, as I reprinted it in page 5 of my brief. I would -- I think a fair and accurate paraphrase of the statute is that it's a crime to sell a book or distribute a book which contains obscene, and I'm -- there was immoral, lewd or lascivious language. I -- my position is that that would be virtually the same as obscene, contain obscene language or descriptions tending to insight minors to violent or depraved or immoral acts manifestly tending to the corruption of the morals of humans. That's the part of the statute that we were involved with in this case, but as -- we have no proof.
Felix Frankfurter: It's your suggestion that the statute had to go a period after lewd, lascivious and lawfully immoral, lewd and lascivious prints, pictures, figures or description --
Manuel Lee Robbins: I have --
Felix Frankfurter: -- period. It doesn't appear you have no quarrel (Voice Overlap) --
Manuel Lee Robbins: That's right.
Felix Frankfurter: Is that right?
Manuel Lee Robbins: Yes, sir.
Felix Frankfurter: All right. I -- I'm not challenging anything. I'm just trying to find out.
Manuel Lee Robbins: I'm sorry. That's right.
Earl Warren: Does the statute say --
Manuel Lee Robbins: Yes.
Earl Warren: Does the statute say contain or does it say "is obscene"?
Manuel Lee Robbins: No, containing, sir, containing obscene, immoral, lewd or lascivious language or obscene, immoral, lewd or lascivious --
Earl Warren: Yes.
Manuel Lee Robbins: -- language or obscene, immoral, lewd or lascivious prints, pictures, figures or descriptions then --
Earl Warren: Yes.
Manuel Lee Robbins: -- the qualifying phrase --
Earl Warren: But without the qualifying --
Manuel Lee Robbins: -- tending to incite minors.
Earl Warren: -- without the qualifying phrase, you concede the statute is good?
Manuel Lee Robbins: If it -- that's right. It's -- that is --
Hugo L. Black: You concede that's your view.
Manuel Lee Robbins: -- the position I took from the start.
Hugo L. Black: You concede that's your view, I suppose. You don't --
Manuel Lee Robbins: Pardon me, sir? I didn't gather your point.
Hugo L. Black: I assume you concede that's your view --
Manuel Lee Robbins: That is my view.
Hugo L. Black: -- of this case.
Manuel Lee Robbins: I can't decide what's constitutional, Your Honor, I understand.
Hugo L. Black: You're -- you're going a long way, it looks like, in connection with some other cases --
Manuel Lee Robbins: I understand.
Hugo L. Black: -- that are written in this field.
Manuel Lee Robbins: I understand. Well, when I say "conceding", I don't mean any assumption of the authority of the Court. I would say -- perhaps, may I modify to say that I would not be here contending that a statute which merely says, this is a crime to distribute obscene literature is unconstitutional.
Hugo L. Black: You mean you wouldn't have taken the case?
Manuel Lee Robbins: No, sir.
Stanley Reed: Well --
Manuel Lee Robbins: I -- I have had happen --
Stanley Reed: -- your view -- does that mean that your contention in regard to "containing" is not --
Manuel Lee Robbins: That is only one of my contentions, sir. I haven't gotten -- haven't had --
Stanley Reed: I know but you said just now that you would concede if you put a period after "descriptions".
Manuel Lee Robbins: Oh, I beg your pardon, Mr. Justice Reed. You're quite right. I was in error. I will withdraw my answer to Judge Frankfurter. The containing aspect, I still would find unconstitutional.
Stanley Reed: You -- you think it had to be the entire book.
Manuel Lee Robbins: That is right. I didn't realize the significance of that. And if they took the "containing" out and then put the period then, then I would be content with the statute. Thank you for pointing that out. Now, I have -- we have eluded -- I mean, the -- there was a wealth of authority to the fact that book must be viewed as a whole by its dominant themes and you can't take isolated passages out of their context. Actually, at the trial, before the trial started, a long list of excerpts of the so-called salacious parts was prepared by the prosecutor, shown to his defense witnesses. They were examined on that. And a great deal of attention by prosecutor and by court was spent on having them read the excerpts and -- and give their opinions about it. The focus of the whole rebuttal by the people was on the excerpts. Ultimately, of course, and I believe that was our undoing in the -- in the finding. And the judge in his opinion, the trial judge in his opinion that police stated that he find the book contains language and description. Now, I want to point the Court in all candor, I want to point to the -- the Court's attention to a further comment that the Court made and -- the trial court made in its opinion. He says, "I find that the -- that this book contains language and descriptions which is obscene," and so forth and goes on with the qualifying phrases, and he says and what's more, 'When viewed as a whole, I don't think these passages were necessary to the development of the -- of the plot of the book where the conflict expressed." Now, that, I don't want any -- I shouldn't want anyone to think that that isn't anyway a view of the book as a whole. He is saying he finds and he says he is taking the statute as it is. He says he finds that it contained these things and then he gives as a matter of dicta, in all due fairness, an opinion that literarily, these other passages were necessary. He doesn't say bluntly and afterwards were at hand, he doesn't say bluntly that this makes the book obscene as a whole. He just says it wasn't necessary to put these passages in the book but he doesn't find the book, by its dominant themes and by view to the whole, was obscene. He says that in his opinion, it wasn't necessary to -- to develop the conflict. Now --
Stanley Reed: Well, how can -- I have difficulty in following you on that. So I'm holding that the defendant is guilty because he sold the book in the City of Detroit, pertaining this language, and also because the Court feels that even during the book, as a whole, is not necessary to the proper development of the theme of the book your in conflict with.
Manuel Lee Robbins: Yes. That is the language I am referring to Your Honor. I'm saying that that is a different than same that I find that this makes the book as a whole obscene.
Stanley Reed: It may be different words but so --
Manuel Lee Robbins: Well, I think that the --
Stanley Reed: -- hold the man is guilty because he sold the book containing this language, all the language of the book, I suppose.
Manuel Lee Robbins: No. Well, you have to look --
Stanley Reed: What is all -- all the language has been referred to --
Manuel Lee Robbins: But the --
Stanley Reed: -- whatever it referred to, all through the opinion.
Manuel Lee Robbins: But he is -- he is repeating --
Stanley Reed: All the passages are read, I don't suppose you read the whole book.
Manuel Lee Robbins: I read the whole book.
Stanley Reed: No, I mean --
Manuel Lee Robbins: The Court?
Stanley Reed: To the -- to the Court of the trial.
Manuel Lee Robbins: No, the --
Stanley Reed: The Court --
Manuel Lee Robbins: -- well, the -- the book was submitted in evidence and the Court just read them.
Stanley Reed: Obviously, there are words in there that are not --
Manuel Lee Robbins: Common parlance.
Stanley Reed: Well, they're not common parlance. There are also words that are not salacious or --
Manuel Lee Robbins: Oh.
Stanley Reed: -- obscene. But he says, pertaining this language, the book contains this language and I -- during the book as a whole, I find the defendant guilty.
Manuel Lee Robbins: If Your Honor please. But he -- that is -- he is really -- really repeating. I mean, the emphasis on this opinion, I think, is on the "containing".
Stanley Reed: (Voice Overlap) --
Manuel Lee Robbins: Because above that, he says however the Court does have to find that it is in violation of this particular statute because the statute does say that it is sufficient to contain lewd, immoral, obscene, lascivious language or description. Now, his primary finding, if Your Honor please, I mean -- and I -- I have no better way of delving into a judge's mind than anyone else. But I think if you look at the conduct of the trial and look at the examination of the witnesses and then look at this opinion as a whole, you're saying he is arguing all the time that it contains these things. And then he, for some reason, and I don't think this is -- this was justified under statute, is saying, and his questions to the witnesses at the trial with the same way, he is saying "didn't have to put this language in to get your point across, Mr. Author".
Speaker: Well, then --
Manuel Lee Robbins: Now, that's what he is saying here. He is saying it was unnecessary. That, if Your Honor pleases, is more, not a -- a legal judgment of what is obscene language and description, that is more illegal judgement of how -- of whether it was literally or artistically necessary.
Stanley Reed: We're taking right here about the problem of whether or not he determines that the book as a whole was obscene.
Manuel Lee Robbins: Yes. And I say he didn't determine that the book as a whole was obscene. I say he determined --
Speaker: Doesn't the -- doesn't the first sentence in the first paragraph throw some light on what he was doing or he says, "So --
Stanley Reed: Yes.
Speaker: -- so that if therefore -- so that if therefore, if there ever is a reveal of my decision in this matter, I am not trying in any way to evade the issue, I am trying to follow the statute as it is".
Manuel Lee Robbins: That's right. That's -- that's right, sir. I think he took the bull by the horns. And I think he was adding gratuitously. He didn't -- he was telling the world, he saw no need for putting this to stop and that it didn't help book any. But he -- I think he meant very definitely in the whole opinion and the whole conduct of the trial examine, he meant very definitely to hold squarely that this containing -- this book contained. And that's what we were in court on and that's what we were convicted of.
Harold Burton: And he meant to give a definite interpretation to a statute that might possibly had been interpreted to mean it must be obscene as a whole and he refused to so interpret it.
Manuel Lee Robbins: That's right.
Harold Burton: Therefore, we have the state court interpreting it as being purely limited to this containing point.
Manuel Lee Robbins: I think that is true, sir. I think it is limited to a containing point. I think if he wanted to say, "Now, I'm -- the only other way he could have done it if he really wanted to obviate my contention was to say, "Now, containing doesn't mean just isolated passage, I'm saying that it contains it to the extent that the book as a whole is just replete please with it."
Harold Burton: And in order to --
Manuel Lee Robbins: Now, he doesn't say that. They were words (Inaudible) and he doesn't use it.
Harold Burton: And in order to secure the constitutionality of the statute, it's conceivable that he might have so interpreted.
Manuel Lee Robbins: He might have.
Harold Burton: And he didn't.
Manuel Lee Robbins: He might have and he didn't. He interpreted -- he -- he convicted us as a -- because our book contained and I think it -- that's a fair -- fair analysis of the whole trial and of the opinion.
Felix Frankfurter: Does that mean, Mr. Robbins, that in a book containing 570 odd pages, under the construction given by the state court to the statute and the statute comes here as though that construction were written into it, if a book of 570 pages, if the prosecutor in Michigan, that he was (Inaudible) about it, as I understand it, if you have a book of 575 pages, prosecutor can say if there are three pages that are obscene and tend to do these things that he can rest and he makes out of the case, is that right?
Manuel Lee Robbins: I think a very literal interpretation of that statute would -- would justify that.
Felix Frankfurter: So the --
Manuel Lee Robbins: Yes.
Felix Frankfurter: -- the statute plus the construction --
Manuel Lee Robbins: That's right.
Felix Frankfurter: -- that you are contending and rightly --
Manuel Lee Robbins: Yes.
Felix Frankfurter: -- that it comes here with an authoritative construction.
Manuel Lee Robbins: That's right.
Felix Frankfurter: And therefore, if he does call out of this -- this or any other book by the 70 pages --
Manuel Lee Robbins: It is --
Felix Frankfurter: -- three pages, never mind what -- what the context of those three pages and the hundred of pages before or after may due to those (Inaudible)
Manuel Lee Robbins: This construction of the statute --
Felix Frankfurter: And your position is that a statute which does that.
Manuel Lee Robbins: Offends freedom of press.
Speaker: And the Fourteenth Amendment.
Manuel Lee Robbins: Offends Fourteenth Amendment.
Felix Frankfurter: The case get down to that?
Manuel Lee Robbins: This -- does this case get down on it?
Felix Frankfurter: Yes.
Manuel Lee Robbins: This -- the principles of this case get down to it. I mean I don't think -- think that he just took up a few -- just one or two little words --
Felix Frankfurter: No, no, I -- I didn't mean that but --
Manuel Lee Robbins: No. The principles of this case go down to that. It can't --
Felix Frankfurter: (Voice Overlap) the -- the interpretation of what is conceived to be the law of this case.
Manuel Lee Robbins: That's right.
Felix Frankfurter: (Voice Overlap) attitude by -- the basis on which adjudication was made in this case is covered by the hypothetical simplification (Inaudible)
Manuel Lee Robbins: That is true.
Felix Frankfurter: Is that right?
Manuel Lee Robbins: That is true. I would -- I would say that that is possible, a very possible thing that we would have to fear if this was the construction. Now, this isn't our -- we've spent some time on it but it isn't our major --
Stanley Reed: What will say to the other --
Manuel Lee Robbins: I beg your pardon?
Stanley Reed: (Inaudible) I suppose?
Manuel Lee Robbins: I -- I didn't get your point.
Stanley Reed: You also say that the other construction would be possible that he did say as a whole.
Manuel Lee Robbins: I don't -- I don't exceed that.
Stanley Reed: No, you don't say so, but I -- I suppose it's a possible construction. You say that the (Voice Overlap) --
Manuel Lee Robbins: Well, not to me to say that it is possible when I enlarge it consistently that I didn't think that's what he meant but I -- I suppose reasonable men could differ on it.
Speaker: (Inaudible)
Manuel Lee Robbins: I'm not a Michigan attorney, Your Honor, and I -- I really can't answer that authoritatively. I think any judge in any court, when a question of constitutionality is raised would be obliged to follow the Constitution and the -- his understanding of the statute and the Constitution had come to the best position under the law that he could. I don't think there is a statute that says judges must decide against constitutional issue or must -- must uphold statute. I would think that he had power to -- to discard the statute and claim that it was unconstitutional but I cannot answer that authoritatively.
Speaker: (Inaudible)
Manuel Lee Robbins: Well, he is -- yes. Well -- I tried this case, Your Honor, and the Recorder's Court is an inferior court to try mainly misdemeanors. It doesn't have a stenographer unless you asked for one.
Speaker: Isn't it --
William G. Comb: (Inaudible) City of Detroit.
Manuel Lee Robbins: Its -- its jurisdiction -- I beg your pardon, my co-counsel has informed me. Its jurisdiction is -- applies to all crimes committed in the City of Detroit. Felonies as well?
Felix Frankfurter: It's -- it's the great Criminal Court of Detroit, isn't it?
Manuel Lee Robbins: Is the great Criminal Court of Detroit?
Felix Frankfurter: Yes. Famous cases --
Manuel Lee Robbins: I thought -- I thought there was a county court.
Felix Frankfurter: Famous cases had been tried before.
Manuel Lee Robbins: I -- I must apologize to any slight I gave to the Recorder's Court. I was trying a charge there which -- in -- in this case which, I think, was punishable only by fine --
Speaker: (Inaudible)
Manuel Lee Robbins: -- or small imprisonment. Now, our first and foremost constitutional objection in this case is not the aspect of containing although, we pressed that with great sincerity. I come again to the statute and say that, what this statute also does is to say that if this book contains any languages and -- and descriptions which is -- which of -- is obscene for children, it can't be sold to anyone. In other words, if this is obscene and tends to incite minors and thereby, tends to incite minors to violent and depraved and immoral acts manifestly tending to the corruption of the morals of youth, it cannot be sold. This means an adult couldn't buy it. This means the public library couldn't buy it and educational institution couldn't buy it. And it means quite generally, that the whole world of adult readership is fobbed off because it might be bad for children. Now, again, I don't want to labor that. I think it's a very drastic inroad on our freedom of press. In other words, what a child or an adolescent or a minor could not helpfully digest or it might work some -- some evil on him, that book cannot be read by -- or purchased by any adult. No one -- no one will sell that to an adult. Now, of course, we all -- as I said in the beginning, of course, the public -- the police power of a State is quite right in protecting the adolescence and minors of a State but there are limits to the degree to which they can go. They can't take overly drastic and highly excessive means to protect this situation. What's more, they -- they rid the whole -- they reduced the whole adult readership in the community to the standard of a child's library. Actually, the statute, itself, I term, a legislative clarification of the rule in the Hicklin case. The old 1868 rule in England was that a book was to be considered obscene if the matter had a tendency to debase or corrupt the minds or morals of anyone in to whose hands it might fall. Therefore, it was the children and the village idiot and the moron that might be considered. Now, by the last 20 years, most of the courts in this country have abandoned the implications of the Hicklin rule, not -- not every single court but most of them have abandoned the implications of the Hicklin rule and taken a better position and saying that it's the average person's sex instincts which are the -- used to be the test. In other words, if the book is viewed as a whole and by its dominant themes, it's dirt for dirt sake to the average person or just stimulates the sexual appetite of -- of all classes of a community that it can -- can be considered obscene.
Speaker: If --
Manuel Lee Robbins: But --
Speaker: -- if the statute was limited to sales of such books to minor, you'd have a different case, wouldn't you?
Manuel Lee Robbins: Well, I considered that, Your Honor. I certainly would have a different case. I would have a harder case. I don't know if I might --
Speaker: I don't want to debate it.
Manuel Lee Robbins: -- still might be here. I don't know. Might --
Speaker: It would -- it would be different.
Manuel Lee Robbins: I might still not be here but I have a lot harder case. Actually, there is no stuff like liquor and tobacco. There is no constitutional freedom to distribute liquor and tobacco but there is as to literature and I --
Speaker: I didn't say (Voice Overlap) --
Manuel Lee Robbins: -- don't know about (Voice Overlap) --
Speaker: -- I said difference.
Manuel Lee Robbins: That's right, Your Honor. It would be a different case. Now, that is our second great complaint about the statute and third complaint about the statute is one as to vagueness and uncertainty. We say that if you'll look at this statute and you see that obscene is modified by these clauses that its obscene language contains obscene language and descriptions, tending to incite minors to acts of violence, depravity and immorality. Now, I suppose this -- I don't want to attack the word "violence". I guess I could come to some accepted definition of violence but I certainly would have a lot of trouble finding a definition of what is depraved or what is immoral which reason -- on -- on terms which reasonable men might not vary.
Felix Frankfurter: You think those qualifications rendered the term "obscene" vague?
Manuel Lee Robbins: Yes, sir.
Felix Frankfurter: They take away -- they take away without credence with the term "obscene"?
Manuel Lee Robbins: That's right. Whatever concreteness we've had in the term of obscenity has been reduced and virtually eliminated by saying obscene in that they do these things. That's exactly the force and effect of -- of these clauses. Now --
Speaker: This is not --
Stanley Reed: Would you -- would you think that -- if something that was obscene conceivably not have a small influence on you?
Manuel Lee Robbins: Oh, yes. It can -- can conceivably but -- but things -- the things that are depraved or what corrupt the moral's view, I don't actually know what --
Speaker: (Voice Overlap) --
Manuel Lee Robbins: -- standard is covered by the moral's view.
Stanley Reed: I agree, it would be very difficult if you didn't have the lewd and obscene in the last sentence --
Manuel Lee Robbins: Yes.
Stanley Reed: -- first.
Manuel Lee Robbins: That's right. That's true. But I don't -- I don't believe that you can say obscene and then say in that, it does these things and claim that --
Stanley Reed: That's right.
Manuel Lee Robbins: -- you have a definite concept of obscenity at that case.
Stanley Reed: That adds nothing to the requirement of this.
Manuel Lee Robbins: Well, it -- it isn't just it adds nothing to, it's very definitely adds such a wide field that I don't exactly know what is -- what publication might be interdicted. Now, I say reasonable men can differ as to what depravity and what immorality are and what manifestly tends to corrupt and there's another aspect of this thing, it's tending. It even adds to the confusion by saying what tends to do these things or what manifestly tends. It even broadens and widens the entire -- entire field of interdicted literature. Now, there are no standard set up in the statute as to what tends to incite or what manifestly corrupts these youths. There are no standards in the statute. The judge doesn't give any statements. He doesn't show in any way in -- in which these standards might be operative. There are no previous cases in Michigan giving us any sign post and all in all, I would say that no member of the public could conceivably understand. He wouldn't have enough notice to know what publications were interdicted.
William J. Brennan, Jr.: So, Mr. Robbins, does that mean that, as you view the statute, it proscribes an obscenity, not ordinary obscenity but some special kind of obscenity?
Manuel Lee Robbins: I said yes, it proscribes an obscenity which is defined in a way which is vague.
William J. Brennan, Jr.: Well, might not the statute also be read as merely proscribing obscenity as ordinary -- ordinarily understood but having certain effects?
Manuel Lee Robbins: A court could construe -- a state court could construe a statute -- I suppose any way it -- it chose to but we went to trial on the statute as it is now with all this verbiage in it, our witnesses were questioned. Our witnesses in the other side, witnesses were questioned and there were examples of this in my brief as to whether something didn't tend to incite minors to violent and deprave conduct. We -- we were -- the Court, in its opinion, said that -- he thought this -- this was obscene, lewd and intended to -- intended to incite minors to violent, deprave and immoral acts. So that, all through this case, we've gone -- we've gone on this litigation with the fact that it was established to the trial court satisfactory that was obscene in that it tended to deprave --
William J. Brennan, Jr.: Well, is there any -- is there any evidence to the question directly, whether this particular obscenity did have the effect of tending to incite so forth?
Manuel Lee Robbins: This particular obscenity?
William J. Brennan, Jr.: Involved in this book, in the excerpts?
Manuel Lee Robbins: Oh, no, no. They were -- well, the witnesses were directed to certain excerpts of the book which viewed by themselves. They paid a good little attention. Actually, there was no expert --
Speaker: (Voice Overlap) --
Manuel Lee Robbins: -- there was no expert testimony as to what motivated views, none whatsoever. There was no expert testimony on either side as to what the written were -- what any of the -- what written words, if any, in here would tend to incite as experts. They were literally experts who, at times, thought that this material tended to deprave -- to incite minors but there was no expert testimony on motivation of any sort. Now, we were -- at the trial, we were confronted by these words.We -- we didn't have a trial court that said, "Let's just forget about all these other words, just let's say we're talking about obscenity." And that all this really doesn't interfere with the question of obscenity. If that was the case, the state court would have construed, it would have been a construction by a state court that this was just merely, as Judge Frankfurter said, we put the period after obscenity. But we went all through the trial and we've gone all the way up here. We've got an opinion by a trial court which included these words and we've had questions after questions to witnesses on that.
Felix Frankfurter: And you say that those qualifying words used the otherwise clear meaning of obscenity to the point of vagueness making it unfair within Due Process Clause and have it (Voice Overlap) --
Manuel Lee Robbins: I -- I would say that except that I think, Your Honor, you say the otherwise clear. I'm not so absolutely positive obscenity is completely free from any doubt but at least, it is --
Felix Frankfurter: The Constitution is sufficient.
Manuel Lee Robbins: Sufficiently clear of doubt.
Hugo L. Black: What does it mean?
Manuel Lee Robbins: Well, I have a great wealth of authority, a varying -- a varying save. I can give you only my personal opinion and that it means dirt for dirt sake. That would be my best definition. There was --
Hugo L. Black: Do you think that's a vague --
Manuel Lee Robbins: Pardon me, sir?
Hugo L. Black: That's a clear, constitutionally clear description, "dirt for dirt sake".
Manuel Lee Robbins: I don't know how constitutionally clear it is but it's the best I've ever been able to arrive at.
Felix Frankfurter: Do you think it's more vague than (Inaudible)
Manuel Lee Robbins: [Laughs]
Hugo L. Black: Why do you think it's more vague and immoral?
Manuel Lee Robbins: I don't really know. Pardon me, sir?
Hugo L. Black: Why do you think it's more vague and immoral, that it phrases or less (Voice Overlap) --
Manuel Lee Robbins: Well, I -- I am acquainted with the opinions that advert to long usage. I am -- I am acquainted with that aspect of it. I think that is an important aspect of it. I think also because people deal with earthy things. People have obscene literature and dirty books. It has been in everybody's mind for quite some time and over the years of experience with sex and with literature and with dirty things. One gets some sort of common accepted feeling as to what is vague, what is generally permissible and what is not generally permissible. Human experience is probably the best answer to that.
Felix Frankfurter: In other words, the answer that may satisfy the constitutional requirement even though, you may not be able to give an algebraic equation for it.
Manuel Lee Robbins: That's right, sir.
Felix Frankfurter: And you trust the judgment of what supposed to be a good juror.
Manuel Lee Robbins: That's right, sir.
Hugo L. Black: If that's true, why, on your argument, could you trust the good jurors on immoral, lewd or lascivious?
Manuel Lee Robbins: No more than I could trust the judgment. I -- I couldn't trust the trial judge to charge a jury on that.
Hugo L. Black: Well, could -- you could -- do you think you could trust them less to charge on that and you could on obscene?
Manuel Lee Robbins: Yes. I think I could trust a judge on obscene.
Hugo L. Black: Well, maybe obscene, maybe you could do that.
Felix Frankfurter: I suggest, you say it has been done.
Hugo L. Black: It has been done. And I've -- I've had --
Hugo L. Black: The other has -- the other has been done too, hasn't it?
Manuel Lee Robbins: I don't know, I've only -- I --
Hugo L. Black: There are many statutes throughout the country that -- that relates to what's immoral, are they not, and lewd and lascivious?
Manuel Lee Robbins: Yes, but there may be sign posts either inquire adjudication --
Hugo L. Black: Maybe wrong but --
Manuel Lee Robbins: -- or in the statute or in the regulation.
Hugo L. Black: And there have been sufficient, in many cases, could judges charge them, have it not?
Manuel Lee Robbins: They may have been -- you -- my experience is not that broad, Your Honor. I've conceived that they may have been. I -- in my own experiences is, as far as literature is concerned, we -- I have never been in a case whereas willing -- let anybody charge as to what was immoral.
Felix Frankfurter: The federal (Inaudible)
Manuel Lee Robbins: Yes. I --
Felix Frankfurter: Is the federal -- the old federal statute --
Manuel Lee Robbins: With lewd, obscene in specific.
Felix Frankfurter: Lewd, obscene and --
Manuel Lee Robbins: Now, this Court -- those words had been construed as (Inaudible) ever since the Schweringen case way back in 161. Well, I -- my argument has been eclipsed to this extent. I think I've said about everything that can be said in this -- in this field except that on the last point, I am -- want to just to call your -- the Court's attention, that there were a series of motion picture cases, I know they are licensing cases. I know they are -- they -- there are some distinctions because they -- to some extent, they involve prior restraint. But I think the tenor and the flavor of these -- of these decisions and we haven't been blessed with many opinions here but we've had a lot of decisions. The flavor of these decisions is such that would strike down words of -- such as immoral or what would debase and corrupt morals. It would strike down that as being overly vague and -- and too indefinite. I say, of course, there's no difference with the motion pictures and books but I say that the same flavor of those decisions, despite incidental distinctions, ought to prevail in this case. Now, all in all, and I'll conclude my argument with this. All in all, if you want to really be realistic about freedom of press and due process of law about certainty and criminal statute affecting the distribution of literature, all in all, you are asked to construe here, the prosecution of a book which we never were afraid to -- to publish and we never -- we weren't squeamish about it. It was in -- by eminent professors have called to the great work. But we're -- we're convicted here of selling this book and a statute which really says it's a crime to distribute to anyone, to anyone a book containing language and descriptions obscenely motivating and corrupting minors or youth and they're not interchangeable, under standards which are not ascertainable.
Felix Frankfurter: Before you sit down, I just want to ask you one question. At before your remark, what I think the (Inaudible) a little awhile ago, you're familiar with cases that give respect -- weigh the fact of the statute is familiar or old, isn't that right? You said something about it.
Manuel Lee Robbins: Yes. The statute is familiar or old.
Felix Frankfurter: So it has behind in age, the statute (Inaudible)
Manuel Lee Robbins: I -- I don't recall saying that but I -- I --
Felix Frankfurter: The thing regarding obscenity.
Manuel Lee Robbins: Oh, I -- I said long usage in the -- in construction of obscenity, yes.
Felix Frankfurter: (Voice Overlap) --
Manuel Lee Robbins: Long usage as to the construction of obscenity. Yes, I am familiar with that.
Felix Frankfurter: (Voice Overlap) Now, that's what I meant by age. But why? I notice in taking Mr. Shepherd's brief that this statute long antedate the implementation. Michigan anticipated.
Manuel Lee Robbins: Yes, sir.
Felix Frankfurter: (Inaudible) and this goes back to a hundred years --
Manuel Lee Robbins: Yes, it does.
Felix Frankfurter: (Voice Overlap) say about that? One --
Manuel Lee Robbins: I can say that the modern period of enlightenment, and I'm considering obscenity, is a young period but nevertheless, if we're going to have freedom of press in the modern period, I really don't care how old the statute is. We've got a modern world to live in and we've got modern considerations for the distribution of literature.
Felix Frankfurter: That may be an admirable argument in regress to modern clubs and legislatures if it's conclusive on the Court but the Court had the last word on what is deemed modern?
Manuel Lee Robbins: I don't know. All I can say is the fact that the statute is even older than the Hicklin case, if Your Honor please.
Felix Frankfurter: I'm not saying that concludes the matter, I say it's very important.
Manuel Lee Robbins: It is important. I don't -- I don't minimize it. I say if I -- when -- when the chips are finally down, the question is how big an infringement of freedom of press that we got today.
Felix Frankfurter: If we have a scale on which we could weigh it, that -- that would be easy but this all --
Manuel Lee Robbins: Well, I'll --
Felix Frankfurter: (Voice Overlap) about judgement --
Manuel Lee Robbins: But the --
Felix Frankfurter: -- on which age the longevity of the statute has, for one member of the (Inaudible) good deal of weight.
Manuel Lee Robbins: It does have a good deal of weight but other things must --
Felix Frankfurter: (Voice Overlap) --
Manuel Lee Robbins: -- have weighed also. What's more? We didn't have paperback books when this -- when this statute was there. We didn't have ready public distributions to adults throughout the community.
Felix Frankfurter: Everything that's new isn't the (Inaudible)
Manuel Lee Robbins: No, Your Honor. I understand that.
Earl Warren: Mr. Shepherd, Solicitor General.
Edmund E. Shepherd: As I understand the word "obscene", take it from the dictionary, it is that which is offensive to chastity of mind or in modesty expressing to the mind or abuse something that delicacy, purity and decency forbids to be exposed. And in my view, that word is not only well understood, it is somewhat elastic in its content from age to age and maybe in different localities. And my definition of obscenity would be that it is something which offends the conscience of the community and that the final arbiter, in determining whether a book is obscene, is the jury. Now in --
Hugo L. Black: I beg your pardon.
Edmund E. Shepherd: -- one of --
Hugo L. Black: Is what?
Edmund E. Shepherd: Is jury of the community --
Hugo L. Black: (Voice Overlap) --
Edmund E. Shepherd: -- is the arbiter of the conscience of that community. Now, we have one case, although only three which have, in any manner, vest upon this statute, that is the Supreme Court in Michigan passed upon, People v Lathers 223 Michigan 92. In that case, publisher of a newspaper was taxed under this very law with publishing a story, I think, double meaning. The judge, the trial judge took the question from the jury and told them that, without going to their jury room, they should render a verdict of guilty. The Supreme Court of Michigan reversed that case on their judgment on the ground that the defendant was entitled to go to the jury on the question of obscenity. Now, I'm not going to dwell very long on this question of vagueness because I want to come to that word "containing". I -- I can't personally see anything vague or indefinite about this statute. I have convinced that, leaving out a lot of extraneous matter, this rather lengthy section to read this way. As far as it is applicable to the X in this case, any person who shall sell any book containing obscene descriptions tending to incite minors to violent or depraved or immoral acts, and I insert the disjunctive there, or tending to the corruption of the morals of youth shall be guilty of a misdemeanor. Now, for the life of me, I can't see anything vague or indefinite in -- in that language because the -- the keyword there is this word "obscenity" as the dictionary defines it and merely because you have phrases added to that doesn't deprive the person of his constitutional rights because it's all hooked up to that keyword.
William J. Brennan, Jr.: Well, Mr. Shepherd, may I ask? Is this statute in the State's burden in establishing guilt of the misdemeanor satisfied by proof of some special kind of obscenity which is not ordinary obscenity or is it that it requires a proof of some special effects of ordinary obscenity case?
Edmund E. Shepherd: I -- I do not apprehend that it requires proof in each particular case of some special effect on children or -- or youths. I don't think that is true. And as I read it, I think that any obscene description, such as we find in this book, would tend to the corruption of the morals of youth.
William J. Brennan, Jr.: Well, then, are you suggesting that the statute deals only with ordinary obscenity and then actual --
Edmund E. Shepherd: Yes, Your Honor.
William J. Brennan, Jr.: -- fact that the appended language "tending to incite" etcetera is surplusage?
Edmund E. Shepherd: More or less, I would say or descriptive.
Earl Warren: Do the statute always have that provision in about youth, Mr. Shepherd?
Edmund E. Shepherd: The statute, as originally enacted, read this way, obscene descriptions tending to the corruption of the morals of youth. In 1954, this other clause or phrase was added "tending to incite minors to violent or depraved or immoral acts". That -- that was added in the amendment in 1954.
Earl Warren: Perhaps after lunch, you could --
Edmund E. Shepherd: Yes.
Earl Warren: -- you could tell us why they made that amendment. Would you please?
Edmund E. Shepherd: I'll try to.


Warren E. Burger: We will hear arguments next in Merrill Lynch against David Ware. Mr. Orrick you may proceed whenever you are ready.
William H. Orrick, Jr.: Mr. Chief Justice and members of the court. With the permission of the court, I would like to save my last 10 minutes for rebuttal. This case is here on a writ of certiorari to the First Appellate District of the Court Of Appeal Of California which is our intermediate Appellate Court. It is an action for declaratory relief and damages which was brought in the California Superior Court by Mr. Ware on behalf of himself and others alleging that a forfeiture provision in a profit sharing plan violated by California Law and is unenforcible. Merrill Lynch answered and petitioned for arbitration and it did so because it had agreed with Merrill Lynch, with Ware, that any and all disputes arising out of his employment would be arbitrated in accordance with the rules of New York Stock Exchange. The Judge in the Superior Court denied the petition without findings and he was affirmed by the Court of Appeal. Not withstanding the fact that four months prior, the very same court had held under identical facts that Merrill Lynch had the right to arbitrate. Now that case is the Ware case which we have included in our Appendix and to which I shall make further reference. Merrill Lynch then petitioned the Supreme Court of California to review these two conflicting decisions. The Supreme Court denied it and we came here to ascertain whether or not there isn't a federal interest in maintaining the uniform application of these New York Stock Exchange rules. Now the pertinent facts are few and they can be stated simply. Ware was employed as an Account Executive at Merrill Lynch in July 1958. Merrill Lynch is a member of the New York Stock Exchange and as such it is required to abide by its rules which include the fact that all account executives must be registered representatives of the Stock Exchange. Now, to become a registered representative of the Stock Exchange, it is necessary for the applicant to undergo a rigorous 26 week training course to pass an examination with respect to both his competence and his integrity and then he must agree to abide by the rules of the New York Stock Exchange. The rules requiring are set forth in the appendix to our brief, Rule 345 and the rules governing arbitration, Rule 347 is on page 9 of the appendix. Mr. Ware did exactly this. He took the course, he passed and he signed an agreement to abide by the rules of the New York Stock Exchange.
Harry A. Blackmun: Excuse me Mr. Orrick.
William H. Orrick, Jr.: Yes sir?
Harry A. Blackmun: The other case you refer to is Frame.
William H. Orrick, Jr.: Frame excuse me yes.
Harry A. Blackmun: And I gather -- both I understand it from Division four, is that right?
William H. Orrick, Jr.: No sir. They were both the same division.
Harry A. Blackmun: That is First Appellate District.
William H. Orrick, Jr.: The First Appellate District.
Harry A. Blackmun: And at least one judge was common to both panels.
William H. Orrick, Jr.: That's correct. Judge (Inaudible), yes sir; that's correct.
Harry A. Blackmun: And we decided it months apart.
William H. Orrick, Jr.: Four months apart. Yes sir. The Frame then went to work as a registered representative in San Fransisco office of Merrill Lynch.
Harry A. Blackmun: Ware or Frame?
William H. Orrick, Jr.: I spoke myself. Thank you Mr. Justice. This is Ware case. He then went to work for Merrill Lynch and he became eligible in January, to become a participant in the Merrill Lynch profit-sharing plan. Now the Merrill Lynch profit-sharing plan is a plan which Merrill Lynch is a sole contributor. And the purpose of the plan is to provide an incentive for the employee to stay with Merrill Lynch and to provide him a future and additional source of income.
Warren E. Burger: Do you regard both of these aspects that is the arbitration clause and the retirement clause as part of the contractual arrangement?
William H. Orrick, Jr.: No, sir. The plan specifically provides an Article 18, that it is not be considered part of the contract.
Warren E. Burger: The arbitration clause is.
William H. Orrick, Jr.: The arbitration clause is. The plan has several other very important provisions. In Section 22.1, it provides that it shall be interpreted under the laws of New York and in Article 11.1 which brings about the instant lawsuit. It provides that an employee voluntarily terminates his employment with Merrill Lynch and goes to work for a competitor that his rights and benefits under the plan, maybe declared forfeit. Now to join the plan Mr. Ware had to agree that the conditions of the plan and this he did, his second agreement.
William H. Rehnquist: Mr. Orrick, why is it important in your argument that the contract provider should be interpreted according to the laws of New York?
William H. Orrick, Jr.: Because what appeared to be the gravamen of Mr. Ware's action, namely, that the Business and Professions Code Section 16,600, made this forfeiture clause invalid, and therefore the choice of law -- therefore that created a strong public policy in California which would outlaw the choice of law provision, I don't know if I make myself.
William H. Rehnquist: I don't see what are the arguments you make here about in effect Federal preemption, if they didn't prevail as you make them, why it would make it improper for California as a matter of public policy to reject New York law?
William H. Orrick, Jr.: Well, I haven't said that, Your Honor, except that I want to make this point, the California statute which is Business and Professions Code 16,600, provides every contract by which anyone is restrained from engaging in a lawful profession trade or business of any kind, is to that extent void. That's what the statute says. Now the Supreme Court in this Muggill v. Reuben H. Donnelley, held that the application of that statute to a provision in a plan that was similar to this, would render this forfeiture clause, unenforceable in California. However, that statute doesn't mean what it says, because the Supreme Court of California in another case, Gordan against Wandell has said that statute will not apply in a situation where there are trade secrets or customers lists or things of that nature involve. That is, what we can fairly -- we think show here, if we get to arbitration, what we are asking here is our right to arbitrate. We have an agreement to arbitrate with Mr. Ware which is under the Federal Arbitration Act and under the State Arbitrate Act, a valid, irrevocable and enforceable. In addition to that we have --
William H. Rehnquist: But it's not enforceable under the State Arbitration Act.
William H. Orrick, Jr.: Sir.
William H. Rehnquist: Certainly it's not enforceable under the State Arbitration Act. Does it? Because the California Court of Appeal ruled against it?
William H. Orrick, Jr.: Yeah, that's why we are here. We think it's clearly enforceable under the State Arbitration Act as it is under the Federal Act. And we think that otherwise, it would be a forum shopping as the Chief Judge Foll dealt with the (Inaudible) DeBerry case. But we are entitled to it under that, in addition Mr. Justice we are entitled to it under the New York Stock Exchange rules particularly 347B. Now these rules were promulgated pursuant to Section 6C of the Securities and Exchange Act of 1934 and they are in this industry, the only industry of its kind where this court has referred to it as federally mandated self-regulation. Arbitration is a very important part of that self-regulation and we have here a situation involving inter-state commerce and we have here a situation involving the question whether these rules, the New York Stock exchange will be uniformly applied, if we are in New York, for example, there's perfectly clear that there would be arbitration under the rules. So we think that we are entitled to arbitrate and entitled both under the Federal statute and under the rules of the Stock Exchange.
Speaker: What if this provision of the exchange rule was contrary to laws of New York? Let's assume that New York had a provision like California does or about this arbitration and this restrictive agreement.
William H. Orrick, Jr.: Well the plan is to be interpreted under the laws of New York. Now, if New York had ruled it invalid, clearly the provision couldn't be interpreted in favor of Merrill Lynch.
Speaker: Well then are you saying that it's just the agreement in the contract that invalidates the California provision, or are you saying that there is provision in the Federal law, which says that the validity of the exchange rules is to be governed by the law of the state in which it is located? If some other state that attempts to invalidate what is consistent with New York law, the Federal law prevents.
William H. Orrick, Jr.: Well, the Federal law says in Section 6C that the Stock.Exchange shall adopt rules consistent with the rules of the state in which it is located and the New York Stock Exchange is located in New York and those rules are consonant with the laws of New York.
Speaker: And then you are arguing that if California, nevertheless attempts to invalidate a Stock Exchange rule which is consistent with the law of New York, it's the Federal law that prevents California from doing so.
William H. Orrick, Jr.: That why I think think the doctrine of preemption, it seems to me.
Speaker: That's the preemption that you called it, but it's a conflict in preemption?
William H. Orrick, Jr.: That's quite exactly so, now I have an --
Speaker: Putting in an argument that is the conflict.
William H. Orrick, Jr.: Yes let me.
Speaker: Putting it in another way, Mr. Orrick. If I understand it correctly. What you are really arguing is that by reason of the Federal statute section C, that statute makes California law inapplicable to the determination of this issue. Only New York law maybe tested to see, whether New York law, or whether these regulations went consistent with New York law.
William H. Orrick, Jr.: Correct Mr. Justice and that now brings me to a discussion of the California Statute, Labor Code Section 224.
Speaker: Well if you are right about that, what's left to the case?
William H. Orrick, Jr.: Yeah arbitration.
Speaker: No, No. But then you won your case on arbitration.
William H. Orrick, Jr.: Yeah.
Speaker: I mean that's the only issue, thing that's here. The only issue that's here is arbitration.
William H. Orrick, Jr.: That's right. And then we go back to arbitrate.
Speaker: Well actually I suppose, the issue is whether this California Statute was properly applied to deny arbitration.
William H. Orrick, Jr.: That's correct and there are Mr. Justice, there are in effect two California Statute here in question.
Speaker: Whatever they may be if you are right and your interpretation of section C of the Federal Statute and of the Supremacy of the Federal Statute, as applied here, we don't have to get into any California Statute.
William H. Orrick, Jr.: That's correct. May I reserved the rest of my time.
Warren E. Burger: Yes. Mr. Barton.
Joseph C. Barton: Thank you Your Honor. Mr. Chief Justice and may it please the Court. I think it's important for this case, perspective so that the court can consider that the narrow issues that are presented here. This case is really about 100 or more former employees of Merrill Lynch who resided in California. And who worked for their employer with integrity and with competency.
Warren E. Burger: In California.
Joseph C. Barton: In California, right. And by reason of their employment and by reason of contributing to the success of Merill Lynch are entitled to be paid to earn wages. Now there is no dispute in this case that the profit-sharing that we are talking about is wages.
Warren E. Burger: This was not a contributing plan, was it?
Joseph C. Barton: No, Your Honor, it was not. I believe petitioner stipulated to the definition of wages as authoritatively construed by the California Supreme Court in the case of Wise v. Southern Pacific. So they are asking that they be paid their lawfully approved wages. Now this case is not about any individuals who have violated any rules of the New York Stock Exchange, any regulations of the Securities and Exchange Commission.
Warren E. Burger: How do we know that, is there a record of evidence on that subject?
Joseph C. Barton: The determination of the class, Your Honor was limited to those individuals who by reason of one fact, they went to work with a competitor where they opened a competing business were denied their profit-sharing rights. There is nothing in the case.
Warren E. Burger: Well under that, might not there be a showing that there was the use of customer list?
Joseph C. Barton: Your Honor, I believe that the interpretation of Business and Professions Code Section 16,600 forecloses that consideration because it states on its very face that any restraint, and there is a different set of laws Your Honor in California that applied to customer lists and confidential information.
Warren E. Burger: Well that's the question that whether a contract clause fixing the forum and calling for arbitration is valid. Isn't that what this case is?
Joseph C. Barton: Well Your Honor. Yes, that is correct.
William H. Rehnquist: Well, it's actually a question whether it can be enforced against the will of the forum state.
Joseph C. Barton: No, I don't think that's the question Your Honor. Arbitration is not mandated by any rule of the Securities and Exchange Commission as amicus has pointed out in this brief nor is it required by any--
Speaker: Stock Exchange Commission.
Joseph C. Barton: Securities and Exchange Commission has filed amicus brief in the case and it's their position that the rule is not required by any regulation, any legislations enacted by Congress in the Securities and Exchange Act particularly and it's not required by any rule or regulations promulgated by the Securities and Exchange Commission.
Speaker: This argument arose in New York, I suppose the other things with the clause would have been enforced wouldn't it?
Joseph C. Barton: Well Your Honor, you are asking about a question about New York law.
Speaker: Yes, I am. Yes.
Joseph C. Barton: Well and according to the case that I have cited to my brief.
Speaker: I will ask it in another way then.
Joseph C. Barton: It would not have been enforced Your Honor, because it concerns a matter of illegality which is unenforceable in the New York Courts pursuant to the decision of the highest court, the Court of Appeals.
Speaker: Well, I will ask you in another way. Your position in the case is that California law governs this case as to the enforceability of the arbitration.
Joseph C. Barton: Yes, Your Honor.
Speaker: Why isn't New York law applicable?
Joseph C. Barton: Why is it New York law because the number one, Your Honor, the case was submitted to the California Courts based on California law by the petitioner and the petitioner asked for interpretation of the RE 1 form and Rule 347B.
Speaker: Who brought the lawsuit?
Joseph C. Barton: (Inaudible)
Speaker: And you based it on New York, on California law.
Joseph C. Barton: Well, the nexus of the compliant Your Honor, was about the forfeiture provision in a profit-sharing plan which has nothing to do with the securities.
Speaker: Well, the case was decided by the court on the basis of California law. Wasn't it?
Joseph C. Barton: Correct, Your Honor.
Speaker: And the court below applied California law.
Joseph C. Barton: Yes, it did Your Honor, as to one little area. We have got an exception.
Speaker: Well, the area is whether or not the arbitration clauses to be enforced in this case?
Joseph C. Barton: Well that's the specific question but the general question.
Speaker: No, I just. I don't want to go any farther than that.
Joseph C. Barton: Yes that's correct.
Speaker: I am talking about the arbitration provision.
Joseph C. Barton: As to wage dispute.
Speaker: The California law governed this, it was helping to govern this case.
Joseph C. Barton: That's correct Your Honor. As to wage disputes. Yes.
Speaker: Now let's assume that the arbitration clause was quite valid in New York.
Joseph C. Barton: Was valid in New York.
Speaker: Let's assume that it was. Now 6C says that the Stock Exchange rule, Stock Exchange may make rule, consistent with the law of state which they are incorporated in.
Joseph C. Barton: That's correct Your Honor.
Byron R. White: Now why should California be able to apply its law when the Federal law says the exchange rules are to be tested thereby, the law of the state in which it is located.
Joseph C. Barton: Excuse me, Your Honor. There has been no definition yet in legislative history of the Act of what located means. Now I submit Your Honor, that New York Stock Exchange is physically located in New York.
Speaker: Let's assume that we decided here or some court decided that located means for the New York Stock Exchange, it means New York. Let's assume that.
Joseph C. Barton: Alright.
Speaker: Let's assume it for purposes of Section 6C, the Stock Exchange is located in New York then what?
Joseph C. Barton: As the matter would be decided under New York state law, New York state law would determine where the arbitration would---
Speaker: Contrary to what was the law that was applied in this case?
Joseph C. Barton: I don't believe that New York state law is contrary in outcome, I believe it would be the same result.
Warren E. Burger: Well, we will resume at that point after lunch.
Joseph C. Barton: Thank you Your Honor.