Warren E. Burger: Mr. Selna you may proceed.
Leland R. Selna, Jr.: Mr. Chief Justice Burger and may it please the Court. The Sierra Club brought this proceeding against the Secretaries of Agriculture and Interior and their assistants to establish that their plans to authorize a huge private recreational development at Mineral King in Sequoia National Game Refuge and for a State Highway across Sequoia National Park to reach that development are -- were illegal. The club argued that unless temporarily enjoined, the implementation of those plans, would cause a irreparable harm to the special conversation interests of the club and to the public. The District Court after two days of hearings granted a preliminary injunction. The Government appealed and the Ninth Circuit reversed, denying the Club standing and then finding District Court error in upholding the Club on the merits. The order dissolving the injunction has been stayed pending the outcome of this case and this Court granted the Club's petition for certiorari on February 22, 1971. The case presents several key issues, including first, whether the Sierra Club may have standing for itself and the public to challenge violations of laws which would injure its long held aesthetic and conservational interests in Mineral King and Sequoia National Park. Second, whether the Secretary of the Interior may permit the State of California to build and operate a new connecting link freeway across Sequoia National Park when it serves no park purpose. Third, whether Congress has limited the size of long term developments in National Forests, say to 80 acres. Fourth, whether the Secretary of Agriculture may authorize a huge recreational development in a Game Refuge. Mineral King is located in the Sierra Nevada Mountains, approximately 225 miles north of Los Angeles. It is a portion of the 15,000 acre Game Refuge which Congress created in 1926.
Warren E. Burger: Now, is the 15,000 acres the large area that you get outlined or is it the white area?
Leland R. Selna, Jr.: Mr. Chief Justice, the area that is in white is 15,000 acres, Sequoia National Park surrounds it on the three sides.
Warren E. Burger: Well, by the distinction now of the colors, is that white area now part of Sequoia National Park?
Leland R. Selna, Jr.: No it is not Mr. Chief Justice. It is a Game Refuge and it is part of Sequoia National Forest, but it has a special status which we will come to.
Warren E. Burger: And the road that you are concerned with will pass from left to right into?
Leland R. Selna, Jr.: The road -- the smaller road is an existing road. The road that is in heavier mark is that which is proposed to connect the State Highway here across Sequoia National Park here, dead end of Mineral King here.
Warren E. Burger: And when you say that it serves no park purpose, do you mean that it is -- its only purpose is to serve the white area which is not part of the park.
Leland R. Selna, Jr.: That is correct Mr. Chief Justice.
Warren E. Burger: Maybe an access.
Leland R. Selna, Jr.: That is correct. Walt Disney Productions has described Mineral King and I am quoting from the appendix at page 53A. “as unsurpassed in natural splendor, perhaps more similar to the European Alps than any other area in the United States and generously endowed with lakes, streams, cascades, caverns and matchless mountain visitors. In 1969, the forest service accepted a proposal from Disney for a huge Resort Development at Mineral King. Disney would construct hotels, lodges, restaurants, other permanent facilities, so the 14,000 persons could ski at Mineral King at one time. Some of those permanent features, including ski lifts, parking and sewage disposal facilities and roads, among other things, would not fit on the 80 acres which is the limit of agriculture's term authority under 16 U.S.Code Section 497. The District Court found that up to 1,000 acres would be occupied and affected by the development. Agriculture plan to get around that limit of 497 by issuing a second interlocking permit relying on 16 U.S. Code, Section 551, which authorizes him to make rules and regulations for the National Forests. Now, the road that we spoke off that is in existence is only partially paved. It was in existence when the park was created and has served Mineral King for 90 years. To solve the problem of transporting 14,000 persons at one time to Mineral King was the -- was a problem. And the State of California agreed to construct a high standard freeway to dead end at Mineral King provided that it could cut across the park. The State rejected other avenues as longer and more costly. The Secretary of the Interior finally acquiesced in the highway, although it would not serve a park purpose. He also was prepared to issue a permit for a high voltage transmission line across the park to serve Mineral King. Sierra Club has worked to preserve the lands of Sequoia National Park and Mineral King since its founding. It helped draw the boundary lines and to work out the compromise which established the Game Refuge in 1926. As at incident of the club's interest in the area some of these members used Mineral King.
Harry A. Blackmun: Does the record show that?
Leland R. Selna, Jr.: Mr. Justice Blackmun, the record contains a letter which is written by a member of the Board of Directors of the Sierra Club in which he in turn refers to his trip to Mineral King. The public record which is referred to at page 30 of our brief, in footnote 3 refers to testimony in 1920 before the House Committee on Public Lands in which Steven Maker, Director of the park service refers down about halfway in the footnote, “The Sierra Club members probably know that area better than now than any other living people. They go there nearly every year, a Club of about 2,000 members and they know every nook and corner of it.”
Harry A. Blackmun: But there is not any direct testimony by the members of the club anywhere in the record, is it not?
Leland R. Selna, Jr.: Direct testimony concerning their use Mr. Chief --Mr. Justice Blackmun, no there is not.
Harry A. Blackmun: This goes back to the days of John Muir, is it not?
Leland R. Selna, Jr.: Yes it does. Commencing in 1965, the Club sought public hearings to challenge the project which threatened to seriously impair its conservation program and to harm the public interest in conserving these special lands. But the Secretary of Agriculture refused to conduct those hearings and without them he promised to sue, he promised to issue the two interlocking permits to Disney. Those permits were to become effective when the State of California let a contract for highway construction and with those permits Disney would have commence the bulldozing and earth moving which would have cause the re -- irreversible change at Mineral King. The Secretary of Interior was about to issue that highway permit which would have triggered the entire project when the Sierra Club filed this action. We first argued that the Sierra Club had standing to sue. Our success on this issue though without more would leave unresolved significant National questions of Public Land Management. It also would leave intact the Ninth Circuit’s predisposition of the merits in this case. We therefore argue that the highway across the park and the Disney Development would be illegal. We will not argue orally concerning the failure of the Secretary of the Interior to conduct hearings on the park highway concerning the transmission line across the park and concerning the standards applied by the Ninth Circuit in dissolving the preliminary injunction. These matters have been fully briefed. This Court decided in the Data Processing case in 1970 that aggrievement to a aesthetic conversation and recreation was well of economic values could sustain the standing. The Court in that case cited the Scenic Hudson Preservation Conference and Office of Communication of the United Church of Christ cases. Those were cases in which organizations, aesthetic for a conservational or recreational interests were sufficiently aggrieved, to permit them to represent the public interest. The case is very comparable with this. This Court this year granted the Sierra Club standing in taking jurisdiction of the Citizens to Preserve Overton Park versus Volpe case to enforce the conservational purposes of Federal Highway 8 statutes. All of these cases confirm the Sierra Club’s standing here. The Club meets the standing tests of Data Processing. It provides a more than adequate assurance of concrete adversity. The Club would be aggrieved or injured in fact by the threatened acts against its conservational interests in these lands. I have referred to its long-term efforts and it -- to it and it has had a long-term program to preserve these lands for educational programs, writings and advocacy which would have been impaired if the development had occurred – had occurred. At the same time the development threatened the public's interest in preserving our natural resources for pub -- present and the future generations. The club was within the zone of interests of the relevant statutes. We will see that 16 U.S. Code, Section 1 protects Sequoia National Park in its present state, in its natural state. Section 497 protects the National Forest against to over development. Section 688 protects wildlife and its habitat in the game refuge. All of these are conservation statutes. All of them protect the public interest which is shared by the Club. Third, none of these statutes precludes judicial review.
Potter Stewart: How old is this club?
Leland R. Selna, Jr.: It is over 70 years old.
Potter Stewart: It has about 78,000 members?
Leland R. Selna, Jr.: It had, at the time the action was filed, I believe that at this time they are over a hundred thousand members.
Potter Stewart: I was just wondering how far your argument would go. I am reminded of these so called clubs that -- that gets chartered airplane flights across the Atlantic Ocean, these ad hoc organizations because I have formed a club, the fans of the Walt Disney Production come in on the other side as party?
Leland R. Selna, Jr.: The question of anybody’s standing, Mr. Justice Brennan, all it be an evaluation that the Court would link, I am sorry Mr. Justice Stewart, would ought to be an evaluation which any -- which the Court would have to make on a case by case basis.
Potter Stewart: A lot of what then and on what criteria?
Leland R. Selna, Jr.: A variety of criteria and might be appropriate as the -- has organization been in existence and has it taken a stand over an unextended period of time that is consistent with its stand, has not done anything which -- gives its special expertise in the area that arises to argue about? Does it have an educational program, does is it write on the subject, does not do its members use the area, is it adequately staffed so that it can present a case in a way that a Court can understand.
Potter Stewart: I think all of these things would have to be tried out and litigated and decided before one could decide whether or not this organization was a proper party?
Leland R. Selna, Jr.: Mr. Justice Stewart it is a --
Potter Stewart: I might say, I am using my analogy which like all analogies is not very exact perhaps, but of these clubs that charter airplanes across the Atlantic Ocean, even with all enforcement of the schedule to airlines, trying to implement the policing of them they have not -- there has not been very successful policing, has there?
Leland R. Selna, Jr.: No Mr. Justice Stewart but if the concern as I understand it ought to be is that the Court be assured that a case or controversy is presented then while an exhausted trial should not be necessary or an exhausted litigation of the quality of the club’s position should not be necessary. There are of these criteria which I think rather quickly and rather easily could be determined by the Court.
Potter Stewart: I do not think even if the club were brand new, if it were a club of an association of people interested, let us say friends of -- friends of bigger highways, that was all -- all in favor of this new highway coming into Mineral King and if they were really friends of great big broad paved highways and they were bona fide, and if they associate to become a party and bring a lawsuit to --
Leland R. Selna, Jr.: It is conceivable that they could.
Warren E. Burger: In the United Church case that you have cited, was not there a suggestion with the principle test of such an organization is whether truly representative of the interest that it seeks to assert.
Leland R. Selna, Jr.: Yes. Mr. Chief Justice and --
Warren E. Burger: You claim that is Sierra is truly representative of the interest that that it asserts in this case?
Leland R. Selna, Jr.: We do. We do and then --
Warren E. Burger: Now, that would not make any difference whether it was organized last year or 70 years ago, would it not?
Leland R. Selna, Jr.: Except to the extent that if the question is to whether it was truly representative might be reflected in its age and--
Warren E. Burger: 70 years tends to reinforce your claim or its --
Leland R. Selna, Jr.: And the truly representative him.
Warren E. Burger: -- the hundred thousand members.
Leland R. Selna, Jr.: Yes it does, Mr. Chief Justice.
Potter Stewart: And why does it have to be an association? Why could not be a man, let us make him an old man who for 70 years has had a very genuine interest, you know what the Sierra Cub was interested in. He is now 75 and he has had this -- a very genuine interest since he was 5 years old, for 70 years and he can show it to the satisfaction of a Court, has exact -- has had exactly the same interest that the Sierra Club has. Why could he not bring this lawsuit?
Leland R. Selna, Jr.: Mr. Justice Stewart I think that he could.
Harry A. Blackmun: John Muir’s terms are distinguished --
Potter Stewart: Right.
Leland R. Selna, Jr.: Could do it.
Harry A. Blackmun: Now I take, Mr. Selna, in your remark you concede there is some limitations than other than a broad and that a broad general interest of the problems of ecology is not enough. To be more specific, if there were a controversy about the installation of a nuclear power plant on the Mississippi River, would you feel the Sierra Club would have standing to sue in connection with that?
Leland R. Selna, Jr.: Mr. Justice Blackmun, I am not at this moment familiar with -- whether the Sierra Club has a chapter or an expertise in that area. I would have to consult with the club before I could answer your question. But it would have to have competence in the area in which it sought to represent the public interest or it would not be able to do it. Now, the Ninth Circuit denied standing in this case because and I quote from its opinion, “the club had not asserted that any of its property will be damaged. That its organization and members will be in danger or that its will threatened.” That is at the appendix at page 217. These injuries to property, organization and status have nothing to do with aesthetic, conservational, recreational of values. They are not redressable under a conservation statute because while the litigant beautifully satisfies the first test of Data Processing, he is injured in fact, he is not covered by the conservation purposes of the statute. And he is outside his zone of interest. Now, because the Sierra Club represents not only itself but the public interests, the Government is wrong in its argument that injury to the public demands a special statutory grant of -- in order to permit standing. But Data Processing case already answered that argument when it recognized that widely held aesthetic conservational and recreational values which by their nature affect the public could be a basis for standing. Its zone of interest in reviewability test apply only to cases where no special statute confers standing and the fact that the interest to group is broad, does not bar standing as this Court has recognized in Flast versus Cohen in 1968 and Baker versus Carr in 1962. On the contrary it is because the club represents the public interest that any questions regarding standing should be resolved in its favor because in these cases, conservationist organizations maybe the only people who will step forward to challenge the illegal acts. The Sierra club does not seek to review authority over the exercise of the -- it does not seek to have its own review authority over the exercise of the administrative discretion. It asks the Court to do that in which it is expert, namely to decide whether the Federal Administrator stepped outside the bounds of their statutory authority. That view should not be barred if the Courthouse do it. We argue that the Disney development at the Mineral King would be illegal on several grounds, but in any event the proposed new high speed access highway across the Sequoia National Park is independently illegal. Congress has expressly protected these parks in their natural state and has severely limited the use of park land. The Organic Act of 1916, which established the National Park Service, included Section 16 U.S. Code, Section 1, as quoted at page 66 of our brief. That Section permits the use of parks only and I quote, “by such means and measures as conform to the fundamental purposes of said parks, monuments and reservations which purposes to conserve the scenery, the natural and historic objects and the wildlife therein and to provide for the enjoinment of that the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations. This statute requires that any changes in parks from their natural state must be in conformity with the park purpose.
Warren E. Burger: Mr. Selna are you telling to us now that there no roads in the Sequoia National Park? Is it just for hiking and horseback parties and that sort of thing?
Leland R. Selna, Jr.: Mr. Chief Justice, there is a road which is the State Highway that traverses Sequoia National Park and serves the purpose of providing access to the park. There is the Mineral King Road which existed prior to the existence of the park.
Warren E. Burger: The one that more or less parallels the proposed new road?
Leland R. Selna, Jr.: Parallels it, but on an entirely different route.
Harry A. Blackmun: Mr. Selna, let me -- I am still struggling. Let me ask my question in the reverse although I realize it is one perhaps I should ask the Solicitor General. If an organization like the Sierra Club is not qualified to bring litigation of this kind who would be to protect alleged overreaching by the Government in an area of this kind where I take it, private parts of land are not anywhere as near the Mineral King Development?
Leland R. Selna, Jr.: Mr. Justice Blackmun, in fact there are private in-holdings in Mineral King. In fact this is an instance where it is conceivable that there are people who -- individuals who would have an injury of a type that would cause them in theory to step forward. They are practical limitations on their doing it. One is that often people in this in-holdings are benefited economically by the development that is about to occur and any aesthetic impulse they had is overpowered by the contrary economic impulse. In many instances and in the case of Sequoia National Park itself -- it is a good example, they are users in the sense of people who have private in-holdings that would be affected one way or the other by the development. So in answer to your question, if not the Sierra Club, in many instances nobody or if not an environmental organization, nobody.
Potter Stewart: But it is -- in this specific case there are private landowners up there, are they not?
Leland R. Selna, Jr.: Yes, there are.
Potter Stewart: I was, you can take pot trips out of there and they have have done it and then -- there are outsiders and so on?
Leland R. Selna, Jr.: Mr. Justice Stewart they have been there for many, many years.
Potter Stewart: Yes.
Leland R. Selna, Jr.: Now in order to give the highway a park purpose the Government argues now that to see -- that Mineral King really is part of the park at -- that the statute is clear that Congress did not include Mineral King in the park but if it had there would be no need for the highway because the Disney Development could not be built in Sequoia National Park. In that park, 16 U.S. Code, Section 45 (b) which is set forth at page 16 of our reply brief, barred the use of more than ten acres for more than 20 years for this type development. Disney’s development violates both the space and time limitations of that Section. The Government urges us to disregard all of these statutes because the Secretary of the Interior ought to be able to cooperate in such a ways to provide access to something that is legal outside the park. In the first place, the route across Sequoia National Park is not the only available route of access to Mineral King, but if it were this argument must fail. It would permit Interior to disregard all limits on its power as long as he was acting in aid of another Governmental Official. Nor is the fact that there is a road in existence, a legalizing effect for the proposed new highway. A new highway would be huge by contrast, would be on a different route, with new cuts, fills and structures and the record shows that its effect would be wipe out 220 acres of virgin park land to endanger Sequoia trees and to create a barrier for the 3,000 man and wildlife.
Speaker: Have you (Inaudible) with that distances from the main highway to the the Mineral King?
Leland R. Selna, Jr.: This from -- this from the State highway to Mineral King is approximately 25 miles. That highway in distance across Sequoia National Park is approximately 9 miles. Concerning Mineral King itself, Agriculture would not have authority to allow it even if it were ordinary National Forest land which it is not. 16 U.S. Code, Section 497 permits the term use of only 80 acres of that land for recreational purposes. The Disney Development at Mineral King is so large that it is spills over those 80 acres and its permanent facilities extend beyond them. The Secretary of Agriculture’s attempt to get around 497 by issuing a second permit for indispensable acreage violates that law. 16 U.S. Code, Section 551 is not authority for the expanded term used. That statute as this Court found in United States v. Grimaud in 1911, delegates Congress power only over administrative detail. It is not the necessary express delegation of power to transfer term interests in Federal Land.
Harry A. Blackmun: And yet it has been used rather widely, has it not?
Leland R. Selna, Jr.: Mr. Justice Blackmun, it is been used widely for permits which the Government has represented in every case were terminable at will and those permits had been for structures in many instances. But in every instance the Government has said, we are in a position to take this -- the usual way immediately and restore the public's right in that land. The fatal difference, the difference here is that the term use is set for 30 years under the 80 acre permit and the other uses are absolutely indispensable to the use that is made on the 80 acres and it results in a tie-in together other uses which is one for a permit for a period of 30 years for acreage exceeding 80. The Government correctly argues, Section 497 previously had a five acre limitation and that was amended in 1956. The Government correctly argues that the motivation of those who wanted to expand five acres to 80 acres was to obtain certainty of tenure and increase financial support for larger developments. But this explanation is of what happened in 1956 is incomplete because it considers only the goals of those who sought relief from the 5 acre limit while disregarding the reasons for any acreage limitation at all. Congress was concerned over the adverse effects of large developments on National Forest Lands. The Forest Service told Congress that 80 acres was necessary in order to include all the facilities in modern developments, including ski lifts. It calmed Congress' fears by saying that 80 acres was the maximum limit. This is set forth in our reply brief at page 11, footnote 25. Congress did not make the amendment which could have been in order, certainty if tenure had been its only concern. It did not just wipe out the five acre limit. Instead it set up a new limit 80 acres. In the entire history of this case no one has explained the purpose of that limitation if not to restrict developments to 80 acres. And when he was campaigning for relief from the five-acre limitation, the Secretary Of Agriculture did reveal that he had used combined permits to get around the five-acre limit. He did not say that any of these combined permits exceeded 80-acres. A key to this matter is as if he was not seeking to have Congress ratify his practice of combining permits, rather he was representing that if he could grant permits for up to 80-acres the practice would be discontinued. The Ninth Circuit erroneously decided that the interlocking supplemental permit to be used in this case need not be terminable at will. Several Attorneys-General, including Harlan Fiske Stone have said otherwise. The Government admits at page 48 of its brief, the supplemental permit is essential to the viability of the project, it is correct. Revocation would destroy the $35 million Disney investment a major portion of which will be -- within 80 acres. The terrific impact on Mineral King of this development would make it impossible to restore it to its natural state. The supplemental term from -- supplemental permit is not even technically reputable. Now, the Government has said if the Court finds that all of this is illegal -- it will affect 84 existing ski resorts. The fact of the matter is it need not do that. This is not a consistent administrative practice. Some regional foresters have used the practice and others have rejected it and in any event there is no general department policy or regulation on the subject. These illegal acts do not legalize Mineral King and they do not require this Court to choose between closing them down and making Mineral King legal. The Court may -- make the operation of its order in this case perspective only. Now, the Disney Development is illegal as it stands on a National Forest, but it is doubly illegal because it was attempted to be placed on a game refuge. In 1926 when it created that game refuge, Congress said that its purpose was to protect from trespass, the public lands of the refuge and the game animals that may be on it, which maybe they are on, is the language of the statute. The impact of the Disney’s develop -- of the Disney development on the games habitat would be enormous. California Fishing Game Commission personnel have stated that in an extensive development and I am reading from our appendix at page 30, “that in an extensive development such as the Disney proposal, considerable wildlife habitat would be lost and wildlife would suffer from human encroachment.” The Secretary has made no finding on this subject. If he had, the finding would have shown that he abused his discretion. We previously have argued that the refuge is not in Sequoia National Park and that whatever practice there maybe on national parks in regard to ski resorts does not legalize it at Mineral King. I will reserve the balance of my time Mr. Chief Justice.
Warren E. Burger: Very well, Mr. Selna. Mr. Solicitor General.
Erwin N. Griswold: May it please the Court. It is important I think to get the setting in this case. Mineral King is not a wilderness area and has not been for nearly a hundred years. There was substantial mining activity there back in the 1870’s. Road into Mineral King was built by the County of Tulare in the 1880’s and has been continuously maintained since that time. That is the road -- this is the main public highway in the Sequoia Park and this is the road which has existed since the 1880’s for nearly 90 years in the Mineral King. In the early 1900’s, a hydro electric facility was built at Mineral King which is still in use there. There are many cabins, 60 summer homes, two small resorts, a commercial pack station and three public camp grounds located in Mineral King as the record shows at page 80. There is indeed a great deal of wilderness area in Sequoia National Park. That is well shown by the map which is near the end of the brief filed in this case by Tulare County which is essentially the same area as the map on the board behind me. But the enormous grey areas on that map are wilderness areas had been so designated by the President and recommended by him to Congress for establishment as wilderness area. The publicly occupied part of Sequoia Park is entirely to the west, in here where the big trees are. All of this area over here is wilderness area. Mount Whitney is here and that is full of pack trails and things like that but is wilderness area.
Potter Stewart: Mount Whitney -- Mount Whitney is in the National Park, is it not?
Erwin N. Griswold: Mount Whitney is on the border of the park about here, Mr. Justice.
Potter Stewart: Right.
Erwin N. Griswold: We had been under something of a dilemma in preparing this case. It has been our best judgment that a decision on the merits of the case would be in favor of the respondents and of course we would welcome such a decision. Nevertheless, a decision on the merits could be reached only after it was concluded that the petitioner had adequate standing to raise the questions on the merits in the District Court. The question of standing is important to the Government and to the Court too, I believe. For this case in a very real sense is the ultimate case on standing. If the petitioner here has standing then I believe it is fair to conclude that anyone who asserts an interest in a controversy has standing. In our judgment, we would not meet our responsibility either to the Government or to the Court if we accepted such a position without fully canvassing the problems involved. The Sierra Club --
William O. Douglas: As you know General, I think the State Michigan enacted the law of giving standing down to citizen and environmental (Voice Overlap).
Erwin N. Griswold: Yes Mr. Justice.
William O. Douglas: And the Bill before Congress is doing the same thing?
Erwin N. Griswold: And there are Bills pending before Congress, we referred to them in our brief. They have not been adopted.
William O. Douglas: Has is there been report on it?
Erwin N. Griswold: That would certainly be a relevant and important. I am not sure that even Congress has the power to create a case or controversy which is within the jurisdiction of this Court. Although it is certainly relevant and could press the matter further than it would be without the act of Congress. Certainly Congress can in certain circumstances authorize what had been called by the Attorney Generals. The Sierra Club is the only plaintiff here. In this respect it is different from what -- for example Overton Park, there are many other plaintiffs and we did not have to question the position of the Sierra Club. In this complaint in the District Court it did not allege that it had any financial interest in the controversy. It did not allege the ownership of any property involved or any interference within the activities that it is conducting. It did not even allege a special interest in Mineral King. The whole basis of their standing is in paragraph three of the complaint at the top of page 4 of the appendix and it is -- its sole allegation is that it has a large number of members and that it has exhibited a special interest in the conservation and sound maintenance of the national parks, game refuges and forests of the country and that would include New Hampshire and Maine as well as California with particular reference to the national resources of the Sierra Nevada Mountains and that is the complete allegation in the complaint, page 4, paragraph 3.
Byron R. White: Or would they need only to amend the allegations to say that they continually run -- their members continually run pack trips into Mineral King?
Erwin N. Griswold: That would help, but they have not done it. They have come close to it as I will say in the moment. One of the amici here, the Wilderness Society, incidentally I find I have 19 papers altogether in this case, something of a pleasure to find three of the briefs amici filed on my side rather than having them all against me and I would call attention -- the Court’s attention particularly to the brief filed by the County of Tulare and the brief filed by the Far West Ski Association, both of which it seems to me are in some respects rather better than the brief which have -- we have filed. But the wilderness --
Potter Stewart: I have a motion for leave to file a brief of amicus curiae in behalf of the United States Ski Association and the Far West Ski Association?
Erwin N. Griswold: Well, I have --
Potter Stewart: In January, I have not -- I do not seem to have their brief, did they file their brief?
Erwin N. Griswold: Filed the -- the one I am referring to is the red one which Tulare County is yellow and the red one I believe leave to file was granted by consent of both sides. But the Wilderness Society says that the Sierra Club really has more specific grounds of standing and in its reply brief and then the oral argument here, the club now adopts the position of the Wilderness Society, but there are no allegations in the complaint to warrant such a position. The complaint was based solely on the boldest grounds of standing of interest. It is not inappropriate to conclude I think that the Sierra Club took this position for two reasons. And one of first of these reasons is now disclosed in -- on page six of their reply brief where they say, the Government seeks to create a heads I win, tails you lose situation in which either the Courthouse door is barred for lack of assertion of a private unique injury or a preliminary injunction is denied on the ground of the litigant who has advanced private injury, has advanced private injury which does not warrant an injunction adverse to a competing public interest. Counsel have shaped their case to avoid this trap. What they say is that if they had a real plaintiff here, he could not have shown irreparable harm because whatever damage he suffered would be met by the Government. They could not on that basis have got a preliminary injunction so they had to appear in the most general terms in order to get a preliminary injunction of which they have got. And then the second ground of their proceeding is they have I think is in the hope that there would be a decision on the merits and that such a decision would thereby establish the proposition that the Sierra Club and numerous other worthy organizations, old and new have standing to raise in Court any legal question in which they assert an interest and without warrant. If such a result is reached, I believe that any individual whether he would be a citizen or alien and in the (Inaudible) case we had a Canadian club of a few hundred members as a party would have standing to raise any question in Court in which he asserts he has an interest without more. I do not think there is any magic in the fact that the Sierra Club is a club or that has members all along in distinguished history, many of which members may well share the interest which its management now advances. If it is the fact that it is a group that gives its standing, how big a group must it be, three members or five or fifty or 50,000? What reason is there for picking any number? If any group has standing because it has an intellectual or emotional interest, does it not inevitably follow that any individual who asserts an interest likewise has standing to raise these legal questions. If the Sierra Club has standing as Mr. Justice Blackmun suggested, would not John Muir have standing. If the Sierra Club has standing, why does it not follow that John Gardner and my ethnical former student Ralph Neider likewise have standing to raise in Court any questions of law which appeal to them as being in the public interest.
Warren E. Burger: Mr. Solicitor General, in the United Church case which was not treated in this Court, but only in the Court of Appeals, standing was rested on the idea that television and radio broadcasters reach into the private home of every -- virtually every listener everyday and on that ground the listeners were given standing. Would you quarrel with that kind of a concept which is different (Voice Overlap)?
Erwin N. Griswold: No, Mr. Justice, although I think it is -- I think it is very close to the line but I think it is on the proper side of the line. That is a little complicated because it arose out of an administrative proceeding and as I understand it the United Church was a party in the administrative proceeding and thus might well be a party aggrieved under the statute authorized by Congress. Here there has been no administrative proceeding and the Sierra Club claims no standing as a party. I can accept the United Church of Christ case perhaps because I happen to like the outcome, but I think it is though very close to the line and not quite the same as this one. If the Sierra Club has standing, why would not the Wilderness Society and the other amici likewise have standing? There is no reason --
Warren E. Burger: By the way -- by the way, did any of them seek to intervene?
Erwin N. Griswold: No, Mr. Justice. There is no reason that I can see why such cases would have to brought in the Northern District of California. The suits are against Government officers and they cannot be served anywhere in the United States. Theoretically, we could have a thousands suits brought by interested individuals and organizations in the 93 Judicial districts to the United States resulting vast confusion. This could probably -- perhaps be helped by transfer and special procedures for molded district litigation. But it would become Flast at best. Now, in the matter involving the recent (Inaudible), there was not only the suit in the District of Columbia or that of which came to this Court, but there was also a suit in the District Court in Alaska. That Court decided the case on November 4, two days before the decision here. We knew about the decision, but did not have the text available on the Saturday morning of the argument here. The decision was favorable to the Government. Whether it was in some way entitled to a res judicata effect, I do not know. Why would it not be a good idea to have let anyone raise in Court any legal issue which he has moved to raise. At least if he has moved enough to litigate about it, do we not have as this case shows the vigorous stress of the adversary system so that this Court and the Lower Courts will be fully informed on the issues involved. Was not that bridge crossed in Baker against Carr. But the plaintiff in Baker and Carr lost his right to have his boat fairly accounted. He was injured. The plaintiff in the association of Data Processing Service Organization suffered immediate competitive injury. It was injured. The plaintiff in Barlow against Collins separate direct economic injury or at least contended he did. As far as I know, no case has yet been decided which holds that a plaintiff which merely asserts that to quote from the complaint here, “its interest would be widely affected and that“ and that “it would be aggrieved” by the acts of the defendant has standing to raise legal questions in Court. But why not? Do not the Courts exist to decide legal questions and are they not the most impartial and learned agencies that we have in our Governmental system. Are there not many questions that must be decided by the Courts? Why should not the Courts decide any question that any citizen wants to raise? As the tenor argument indicates, this raises I think a true question, perhaps to somewhat novel question in the separation of powers. That doctrine derived from Locke and Montesquieu and others which permeates our constitution in the federalist papers and they are so often been recognized by this Court as in cases as divergent as Marbury against Madison and Myers against the United States. Ours is not a Government by the judiciary. It is a Government of three branches, each of which was intended to have broad and effective powers subject to checks and balances. In litigable cases, the Courts have great authority. But the founders also intended that the Congress should have wide powers and that the Executive Branch should have wide powers. All these officers have great responsibilities. They are no less sworn than are the members of this Court to uphold the Constitution of the United States. This I submit is what really lies behind the standing doctrine. Embodied in those cryptic words, case and controversy in Article 3 of the Constitution. Analytically one could have a system of Government in which every legal question arising in the (Inaudible) of Government would be decided by the Courts. It would not be, I submit a good system. More important, it is not the system which was ordained and established in our Constitution as it has been understood for nearly 200 years. Over the past 20 or 25 years there has been a great shift of the decision of legal questions in our Governmental operations into the Courts. This has been the result of continuous whittling away of the numerous doctrines which have been established over the years, designed to minimize the number of Governmental questions which it was the responsibility of the Courts to consider. I have already mentioned the most ancient of a case or controversy which was earlier relied on to prevent the presentation of feigned issues to the Court. But there are many other doctrines which I cannot go into in detail; reviewability, justiciability, sovereign immunity, mootness in various aspects, statutes of limitations and latches, jurisdictional amount, real party and interest and various questions in relation to joinder. Under all of these headings, limitations which previously existed to minimize the number of questions decided in Courts have broken down in varying degrees. I might also mention the explosive development of class actions which has sown more and more issues into the Courts. In this connection I would refer to the case of Laird against Tatum in which certiorari was granted yesterday. Now that -- it was because of the very extreme nature of the position in that case that I thought it worthy of bringing to this Court. The position there is that the plaintiff can maintain that suit as a class action, although the plaintiffs in that case are not intimidated as is shown by the fact that they bring the suit, but they bring it on behalf of others citizens who might be intimidated if they did not stand up and talk for them. And similarly in the case of Alabama against the Secretary of the Treasury, at the very last minute, a common cause applied to me for a consent to file a brief, amicus curie, I thought it came much too late to grant my consent. I do not know whether the Court adopted their motion or not, but they did file a motion and a brief in which they said that common cause intends to litigate many issues involving fiscal and other matters, and therefore, it is much interested in the questions of standing involved in that case. If there is standing in this case I find it very difficult to think of any legal issue arising in Government which will not have to await one or more decisions of a Court or the administrator sworn to uphold the law can take any action. I am not sure that this is good for the Government. I am not sure if it is good for the Courts. I do find myself more and more sure that it is not the kind of allocation of Governmental power in our tripartite constitutional system that was contemplated by the founders. This point is well and briefly covered in the red covered amicus brief filed by the Far West Ski Association. In this case, on page 8 of their brief, they cautioned against the situation where the Government will be deceived in the future by those who would substitute their judgment for the Government’s judgment to the point where it can no longer fulfill its responsibilities to its citizens. And they add on page 9, administrators must be held to act within the scope of authority provided them, but likewise actions which they take within that scope of authority must not be subjected to protected litigation for the sole purpose of forcing another look at the decision already reached. I do not suggest that the administrators can act at their whim and without any check at all. On the contrary in this area they are subject to continuous check by the Congress. Congress can stop this development anytime it wants to. I think it was to --
Warren E. Burger: Mr. Solicitor General, we will resume after lunch. That is a good stopping point. Mr. General you may resume. You have seven minutes remaining of your time.
Erwin N. Griswold: I must conclude my argument on standing. The issue here in that respect is a basic and fundamental one. It is the appropriate limit on the judicial function under our constitutional system. Should judges be dealing almost continuously with heeded socio and economic controversies? Will not the Courts be in a better position to decide the many difficult and important questions, which only the Courts can effectively resolve in our constitutional system? If they do not undertake to decide all the legal questions, that anyone wants to present to them. Now, with respect to the merits, there are essentially three questions. There is the question of the term permit not exceeding 80 acres for 30 years.
Byron R. White: Mr. Solicitor General, is not the question whether an injunction, a temporary injunction point of --
Erwin N. Griswold: Yes Mr. Justice but that turns in part on the questions of standing.
Byron R. White: I understand but --
Erwin N. Griswold: Well, on the merits by that, I mean, on whether there was sufficient chance that the plaintiff could win in a trial on the merits that it was appropriate for the Court to grant a temporary injunction.
Byron R. White: Because of -- this case is going to be tried if --
Erwin N. Griswold: I appreciate that Mr. Justice, but if the Court can conclude that, the legal situation is such that no showing of facts would warrant the issuance of a permanent injunction then there should not be issued a temporary injunction or indeed even less --
Byron R. White: So you are really saying that we should decide these three questions you are going to talk about here?
Erwin N. Griswold: Only Mr. Justice that they are not serious enough to make it appropriate to grant a temporary injunction without a trial.
Byron R. White: We do not have to finally to decide them?
Erwin N. Griswold: You do not have finally to decide them, but my position is that it can be readily found that they are not serious enough so as to warrant the granting of a permanent injunction even though there is some chance that after trial it might be that circumstances could be shown which would lead to the other conclusion. Mineral King is not a National Forest, excuse me, Mineral King is a national forest. It was excluded from the Sequoia National Park in 1926 because there were mining claims there. It is perfectly obvious that it is geographically a part of the park area and new mining claims cannot be located in a national park. Although it is not a national park it was made a national game refuge and the function of that is that hunting is not allowed in a national game refuge, although it is allowed in a national park. There is nothing about making it a national game refuge which means that it must be kept to wilderness or that people may not use the park freely. As long as it goes to 1949, the Secretary of Agriculture designated the area as a recreation area “hereby set apart and reserved for public recreation use.”A nd in 1960 Congress enacted the Multiple-Use Sustained-Yield Act which provides for recreational use. There are two statutes, one of which now authorizes term permits for 80 years, the other of which authorizes the term permits for 80 hectares up to 30 years, the other of which authorizes revocable permits without limitation of area, but always revocable. And the legislative history makes its perfectly plain that when Congress extended the term permit area from five hectares to 80 hectares in 1956 both committees and both Houses of Congress recorded in the committee reports that the Department of Agriculture now has adequate authority to issue revocable permits for all purposes under the Act of June 4, 1897. I do not see that there is any basis for saying that there cannot be both term permits and revocable permits. And as the appendix in our brief shows, there are 84 situations where that has been done over a period of many years and both the practical construction and the fact that this has been repeatedly called to the attention of Congress, lead to that conclusion. Now, with respect to the highway through the park that becomes Interior Department rather than Agriculture Department. 16 U.S.C. 8 expressly provides that the Secretary of the Interior shall have power “to construct, reconstruct and improve roads in the National Parks. This is either a construction of a new road or a reconstruction. It is in part on the same right of way and in part elsewhere. There is nothing in the statute which says that the road must be for park purposes nevertheless, the road does have a legitimate park use. It will enable people to see areas in the park which would not otherwise be available to them. It will connect with certain areas in the park where there are no camps. More important I am advised that it will provide markedly improved access for equipment and men engaged in fighting forest fires within the park. Perhaps the superficially most difficult problem in the case is the provision with respect to the electric line. This is a 66,000 volt transmission line which, however, is to be buried in the road. No powers and no cables and we do have a statute, Section 45 (c) which says that no permit, license, lease and so forth for conduits, reservoirs, dams, power houses, transmission lines or other works for storage or carriage of water shall be granted or made without specific authority from Congress. And the best statute is read alone, it becomes a very difficult to deal with. However, the legislative history shows very plainly that this language first appeared in the Federal Power Act and was intended to prevent the federal power commission from granting licenses to build a hydroelectric establishments, dams, Water Park and transmission lines in National Parks. When Sequoia National Park, this was done in 1921, when Sequoia National Park was established in 1926, this same paragraph was taken over verbatim and put into the Sequoia National Park Act. But at that time Congress expressed in the committee report that this was done to prohibit the development of hydroelectric power in the proposed enlarged part, in except by act of Congress. This has nothing to do with the hydroelectric power. There are other statutes which expressly authorizes the Secretary to grant rights of way for electric poles, plants and lines for the generation and distribution of electrical power and for telephone and telegraph purposes. And in the light of all the history, we think it is plain that Congress did not intend to repeal old statute when it could in this provision designed to prevent the establishment of hydro electric establishments in the National Park.
Warren E. Burger: Thank you.
Harry A. Blackmun: Mr. Solicitor General I have one question and I suppose it is presumptuous of me to ask you at this stage of the case. The road, if put in and developed, would be at best a two-lane road with little turn places or passing places. It strikes me as though this likely insufficient for the number of daily guests and trucking requirements for the Disney Center if it ever comes. Do you have any feel about that?(Voice Overlap)
Erwin N. Griswold: There is a provision in the proposed permit Mr. Justice, which says that the road will not be increased in size and that if it turns out to be inadequate that the State will provide other means for getting into the area and it is possible to do so and this I am told is paragraph 37 of the proposed permit on page 76 of our brief as a condition for granting this permit, permitee which is the State of California agrees that should it ever be necessary in the future to provide for increased visitor capacity in Mineral King, an alternate means of access to Mineral King shall be provided which does not involve access through the park or in the alternatives such excess capacity shall be accommodated through mechanical means in lieu of any further improvement of road access and the only thing that I could think of that the mechanical means is would be helicopters or maybe some other kind of airplanes. I am told that it is possible to construct roads through here, which however would be much longer and would involve greater injury to public land, though not the National Park. Certainly the problem with which your question is directed Mr. Justice has been considered by the Department. Let me say just one more thing. There is some confusions where which we are to blame about the difference between this appendix in our brief of a proposed permit being different from the one in the Ninth Circuit. It was not intended to be. It is intended to be the same permit, but when it got to our office, a member of my staff found that there were two paragraph 17, so he proceeded to renumber the subsequent paragraphs and that naturally is confusing, but this is essentially the same permit as was presented to the Court of Appeals.
Warren E. Burger: Thank you Mr. Solicitor General. Mr. --
William O. Douglas: By the way Mr. General, you said you have covered the standing question in the footnote. It does not appear in the copy of the brief that I have. Could you -- would you mind submitting it --
Erwin N. Griswold: That I covered standing in the footnote.
William O. Douglas: In answer to my question about legislation dealing with standing?
Erwin N. Griswold: Oh! Yes I am sure it is in my --
William O. Douglas: Well, would you mind (Inaudible)
Erwin N. Griswold: I will find it and --
William O. Douglas: Thank you.
Erwin N. Griswold: Thank you.
Warren E. Burger: Some of you were about out of time, but in view of this enlargement we will give you three minutes.
Leland R. Selna, Jr.: Thank you Mr. Chief Justice. In looking at the merits this Court will find that both the issue of the legality of the highway in the National Park and the legality of the term permits or combining of permits to exceed 80 acres are such that they could indeed and finally decided in this Court. Turning to the question of standing, it should be clear from our argument that we do not urge that the doors of Courts be opened wide to anyone. We have argued that there are criteria which should be applied by a Court and by which the organizations or individual’s qualifications for standing should be tested. The Club in this case did in fact allege its special interest in the area involved and in this area I have noticed pleading, no one in California at the District Court level had any question in their mind as to the deep involvement of the club with Sequoia National Park and Mineral King, so that a case or controversy would be assured. Now, the Solicitor General has made reference to the reply brief and to our reply brief in dealing with the matter of the club’s use of the area in question. It is true that the Sierra Club for a number of years has run pack trips in Mineral King and it is also true that is specific indicator of its interest in the area was not part of the allegations of the complaint. Those pack trips that are non-profit activity and they are not for any private purpose. Their purpose is to acquaint people with the national features of the area so that they in turn will be workers that would help to preserve it. Any interference, which the Disney plan would have with those pack trips would not have been of sufficient importance to this club to undertake the litigation that it has ensued here and because of those pack trips, though they are non-profit and though they are in furthering service, interest in the area could have been misunderstood as an economically oriented or other private interest not directly related to the public interest. They were not alleged. Now, concerning whether the Courts will be inundated by the granting of standing in a case such as this, I should only say that the experience which many, many cases we have eluded to has been not to purport -- inundated it all, but that the number of lawsuits brought by environmentalists and conservationists groups has been significantly limited by the practicalities and the realities of carrying out litigation of this type. Now, concerning injury, it is true that injury to aesthetic and conservational and recreational values is different in kind than an injury to a voter’s rights or an injury to a tax payer’s rights. It is nevertheless a concrete injury and it should serve everybody strongly. As this Court has already noted in the Data Processing case as a basis for statutory agreement, aggrievement under the Administrative Procedure Act as those other types of injury. Thank you, Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Selna, thank you Mr. Solicitor General. Do you want to --
Erwin N. Griswold: May I Mr. Justice Douglas’ question? Mr. Justice Douglas it was not a footnote, it is on page 17 of our brief.
William O. Douglas: Thank you very much.
Erwin N. Griswold: And just at the middle of the page and then there is a related reference on page 26 with a footnote following that and I think that is what I had in mind.
William O. Douglas: Thank you very much.
Erwin N. Griswold: At pages 17 and 26.
William O. Douglas: Thank you.
Warren E. Burger: Thank you. The case is submitted.


Earl Warren: Number 368, A Book Named "John Cleland's Memoirs of a Woman of Pleasure", Appellant, versus the Attorney General of Massachusetts.
Charles Rembar: May it please --
Earl Warren: Mr. Rembar.
Charles Rembar: May it please the Court. This is an appeal from a decision of the Supreme Judicial Court of Massachusetts which held that this book was not entitled to constitutional protection by a four-to-three votes. I'm happy to say Mr. Chief Justice that I bring you a case in which is not necessary to read the book. It's not that we don't want you to read the book, we urge you to read the book. We think it's a good book. We do not think it will adversely affect your moral fiber. We do not think that you will find it deeply offensive. Although if the members of this busy Court have not had time to keep up with the bestseller lists, you may find the subject matter a bit unusual. And on the matter of redeeming social importance --
Speaker: Do (Inaudible) how would a judge make a dissenting opinion without reading the book?
Charles Rembar: In this way, Your Honor, all counsel here --
Speaker: And not wasting of my time (Inaudible)
Charles Rembar: I don't think your time was wasted, Your Honor. I think, as I say that it is a book which has many values to offer to the reader.
William J. Brennan, Jr.: Well then, help me because I haven't read it.
Charles Rembar: Very good, Your Honor. I will say this though, if I may help the Chief Justice first. The -- we have here a record in which there is an overwhelming demonstration of the kind of value that all counsel here today agreed, invokes the protection of the First Amendment. I would suggest that a possible answer to the administrative difficulty that the Chief Justice has outlined is that where you have highly qualified witnesses who come to Court and stake their professional reputations on their analysis of the book and its values where you have published reviews and critical essays by people who have no interest in the outcome of the litigation, which also established that value. Then on the record, the book is entitled to the protection of the First Amendment.
Speaker: Did the judges in your court decide this (Inaudible).
Charles Rembar: The majority below, Your Honor, did not accept the test of redeeming social importance. They referred to it as one other possible test. It obviously made very small impression on them. And then they committed an error which I believe this Court will find to be an error on the basis of the record. They said the book has only minimal literary value. Now, this Court of course while --
William J. Brennan, Jr.: I thought Mr. Rembar that expert testimony, if I get what you're saying, if a number of distinguished literary critics say this book has social value that ought to be enough for us. But I gather they're on the experts, aren't they? And I -- if the ultimate decision is for us, I thought expert testimony was only to aid not to decide for the ultimate fact or other determiner of what such help as it may give but I don't think it could be substitution for --
Charles Rembar: I didn't mean to suggest the contrary, Your Honor. What I'm saying is this. You do not accept the conclusion of the so-called expert. He doesn't merely get up there and say, "This book has value" and leave the Court, and there can be testimony on the other side as well. It is for this Court to read the record, to appraise the testimony, and to decide whether really a case has been made out for social value. The witnesses in this case didn't make conclusory statements. They analyzed the book. They spoke of the various canons of literary criticism that are to be applied. They found the book good under those canons. Now, in opposition there was one witness, and we would leave to the Court the appraisal of his testimony as well. He was a witness who spoke in conclusory terms. He called the book obscene and prurient. He said that prurient meant esoteric. When asked if that was really the word he meant, he said yes. When he was asked who it was that the heroine had married at the end of the book, he couldn't remember. He referred to Jane Austen as an 18th Century novelist. While all of these things can be considered, at the same time the Court can consider the qualifications and the statements of Professor Fred Stocking, Chairman of the Department of Literature of Williams College, Professor John Bullitt Professor of English and Master of Quincy House at Harvard, Professor Holland of MIT, Professor Sproat of Boston University and the rest of the witnesses.
William J. Brennan, Jr.: Well I -- I might understand this if it were a problem in nuclear physics, but I wonder if that carries over in this area.
Charles Rembar: I submit Your Honor --
Potter Stewart: It is your point, Mr. Rembar, that simply as a matter of law, not as a matter of fact, but as a matter of law if witnesses of this caliber and stature and good faith testify to this, then no matter how many people disagree with them, if there -- if there are those people of this caliber willing to testify and able to testify under oath to this, then no court could hold that this was utterly without redeeming social importance, is that it?
Charles Rembar: Well, Your Honor says no matter how many people disagree with them, I would ask in court or out of court?
Potter Stewart: I mean -- witnesses, now we're talking about witnesses under oath.
Charles Rembar: Witnesses, if there is a substantial body of expert testimony that says this book is utterly without value, then this Court will make up its mind on the basis of that record just as it does in other cases where there are disputes.
Potter Stewart: But our test has been utterly without.
Charles Rembar: Yes, Your Honor, and that is what the test will be. But in applying that test, you will have to consider the testimony on both sides of the case. It's conceivable that you have to --
William O. Douglas: So if you got one Baptist minister at one side and a thousand in the other, you couldn't say that --
Potter Stewart: Utterly without --
William O. Douglas: -- utterly with?
Charles Rembar: The Baptist minister, I think, Your Honor would not be qualified to give literary testimony. He might testify as to the religious value of the work.
William O. Douglas: Well, I see. But you --
Charles Rembar: But I would say in --
Potter Stewart: He can have a work conceivably have that redeeming social importance because of its literary value, because of its moral value, because of its --
Charles Rembar: Scientific, artistic -- this Court has mentioned those aspects and --
Potter Stewart: -- theologic and anything else.
William O. Douglas: But the minister might have turned light upon redeeming social value, might he not?
Charles Rembar: He might if the value of the book were urged to be --
William O. Douglas: What if he testifies and use it to his own therapy and counseling those --
Charles Rembar: Then it has a medical or a psychiatric value.
William O. Douglas: Yes.
Charles Rembar: Yes, Your Honor, that would constitute that kind of value. But if I may return to your question --
William J. Brennan, Jr.: Mr. Rembar, I'd just like to get this clear now. This follows up with Mr. Justice Stewart. Are you urging on us that we set that where there is testimony directed to the issue of redeeming social value and that is credible testimony of acknowledged experts in the field that that ends any obscenity case without ever reading the material involved.
Charles Rembar: Yes, Your Honor.
William J. Brennan, Jr.: Is that what you're saying?
Charles Rembar: I am saying that.
William J. Brennan, Jr.: And is that -- that is well-written literate, pornography is outside.
Charles Rembar: Your Honor, the word pornography --
William J. Brennan, Jr.: Well, it doesn't mean that? Well, we're dealing -- we're dealing, I guess, by hypothesis with what's pornographic material as to which however a number of acknowledged literary critics are willing to say it has some literary and therefore social value because it's well written.
Charles Rembar: If by pornographic, Your Honor means, sexually arousing or lustable, in terms of decisions, the answer is yes. I think it has been clear for some time now that material whose effect is to stimulate a sexual response in the normal person is not for that reason to be denounced. I think that sexual --
William J. Brennan, Jr.: Well, Roth said that much I think, didn't he?
Charles Rembar: Yes, Your Honor.
Hugo L. Black: Well, if you need an expert as to what -- whether or not it has social value, an expert in that field, why not go to a member of the legislature? (Inaudible) make the best expert here, the ones that's used to passing on those kinds of policy.
Charles Rembar: Because he's not an expert in that field, Your Honor.
Hugo L. Black: He's an expert in passing on whatever -- reformative law have redeeming social value.
Charles Rembar: But here, the assertion is not that the book has value as legislation. It's that it has value as a book.
Hugo L. Black: That's right, but there's a policy there, the question of policy. And I would think no one would be better qualified to do that, the concepts of government, than the members of the legislative body, assuming always that it doesn't violate the First Amendment.
Charles Rembar: Mr. Justice Black, suppose what was urged was not that it had literary value but that it had scientific value, that it has great value in expounding the point.
Hugo L. Black: To get aside?
Charles Rembar: I beg your pardon?
Hugo L. Black: Get aside.
Charles Rembar: Yes, and if what is urged is literary value, get people who know about literature.
Hugo L. Black: Well, is that limited to literary value, the idea of great social value?
Charles Rembar: Not at all, Your Honor. It can be many things. In this case we say there is literary value and we say there is historical value. In other cases, it might be another kind of value. It might be the kind of value that Mr. Justice Douglas adverted to, a value in helping psychiatric measures or counseling. There can be many kinds of value.
William J. Brennan, Jr.: But the literary value, I just want to be sure if I understand you correctly, is not because it has some special moral to convey -- is it only in that it is well-written, well-expressed, whatever the story maybe that it tells?
Charles Rembar: There are -- as elements of literary value, good writing with observations of human nature, psychological insights, the drawing of character, the impression on the reader that there were real people involved in this. All these things have literary value.
William J. Brennan, Jr.: Well, I'm just suggesting you, isn't that -- isn't that all add up to something well and powerfully written? Does that add up to anything more?
Charles Rembar: Well and powerfully, yes Your Honor.
William J. Brennan, Jr.: Yes.
Charles Rembar: But the reason I was that detailed in answering your question is that we have encountered the argument that merely a good style is not enough. And I want to say that here we have much more than a good style. I'd like to return to Mr. Justice Stewart's question. If -- if there is a substantial body of expert opinion that finds value, then I say the book is entitled to the First Amendment protection. It does --
Potter Stewart: Because a court as a matter of law could not then hold that it was utterly without redeeming social value, is that it?
Charles Rembar: Yes, Your Honor, but I am not saying that if one witness comes in and says it's a good book that that automatically answers the question.
Potter Stewart: Right. You -- do you think -- excuse me. Do you think it's clear to you, as apparently to your predecessors here today have, that the Court has clearly established the test of obscenity as three-component test of a pure and prurient interest and utterly without redeeming social value and something as patently offensive?
Charles Rembar: Yes, Your Honor. I think that is the necessary implication.
Potter Stewart: Where did you get that, from what case?
Charles Rembar: Well, two of the tests from Roth. The patent offensiveness test does not have a substantial backing, because the Roth opinion was a majority opinion. And the opinion of Mr. Justice Harlan in which the patent offensiveness test was enunciated was not a majority opinion. But I think it is also true that the patent offensiveness test represents one branch of the prurient interest test as set forth in Roth. That is there is in addition to the kind of morbid and unhealthy appeal to a certain kind of sexual response, in addition to that, there is the idea of going substantially beyond customary candor, which I think is very close to the patent offensiveness test as Mr. Justice Harlan stated it.
William O. Douglas: This book was published first in 1774?
Charles Rembar: '49, Your Honor.
William O. Douglas: 1749, then under your historical argument, I suppose anything that would now in 1965 show what people were thinking about or doing, 1749 would past muster.
Charles Rembar: It would show enough of it Your Honor. There was a testimony here that the book has historical value in two ways. One is that it informed an important part of the development of the novel. It came in that decade in which the novel as an English literary form was created. The other is that there is a great deal of material in the book about manners and customs at the time.
William O. Douglas: Showing how bad our forefathers were?
Charles Rembar: There is in our brief, Mr. Justice Douglas, a material showing that there is a rather acute parallel between the events related in this book and the events related in the newspapers at just about the time this book was published in connection with the pro forma affair in Great Britain.
Speaker: What's happened in England as a matter of interest? Has this book been --?
Charles Rembar: There's been --
Speaker: -- banned or what?
Charles Rembar: I don't know the current status Your Honor. There was a trial in which the judge, the magistrate, held the book obscene and there was no appeal. I don't know what the situation is outside the jurisdiction of that magistrate.
Speaker: Well, in this country, it's been banned in Massachusetts, but it's been allowed in New York and what?
Charles Rembar: That's exactly it. Those are --
Speaker: Those are the two --
Charles Rembar: -- the two states in which the cases reached the highest court. There was a trial in New Jersey which held against the book and the appeal there has been held in advance pending the outcome of this case. I would like, if I may, to mention the brief amicus that was filed without consent of the parties but with the permission of the Court. That brief deserves special mention because I think it represents more truly than the brief of the Attorney General, the nature of the opposition to this book. The brief proceeds from Curll's case. It cites that case eight times. Curll's case was decided in the first year of the reign of George II. Curll was a rather rambunctious publisher who was held into court for two things he published. One was a book that the government felt -- brought the government into disrepute. The other was a book that the government felt was obscene. The court in the obscenity case decided that obscenity was a common law crime and they decided it on this basis. They accepted the argument of the Attorney General there that a breach of the king's peace is a common law of crime. That a breach of the king's peace can come from writing and he said it comes from three kinds of writing -- writing that tends to bring the government into disrepute, writing that tends to go against religion, and writing that tends to go against morality. The Court agreed with him on all three. Now, I think this is extremely important because it shows exactly what the kind of opposition to publication is that is found in the anti-obscenity laws.
William O. Douglas: That reduces the extent of books on mathematics and books on religion.
Charles Rembar: Books on religion would be bad under this test. But what I wish to point out, Your Honor, is that when the First Amendment was adopted, all three aspects of this opposition were rejected. They came as a package and they were rejected as a package.
William O. Douglas: Was this book ever prosecuted, the publisher or dealer in the 18th Century?
Charles Rembar: A -- the author himself was not prosecuted. The bookseller later was prosecuted but it appears that the book was not an authentic copy of the original. This book throughout its history has had sort of a reverse bowdlerizing. People have added things rather than taking them out. They've added illustrations for example and an illustration formed the basis of a case in 1821 in Massachusetts in which a defendant named Holmes was convicted. I want to say one more thing on a question that was asked previously and that has to do with the state and federal question. I want to call to the Court's attention, certain practical considerations that should affect the legal conclusion. An author lives in one state, a publisher publishes in another. The book is printed and bound in a third and it's distributed by wholesalers everywhere. None of these people observe state lines. In New Jersey, there was a stipulation that the book was would not be distributed during the pendency of the case. Some books got into Campton because the Philadelphia wholesaler covers South Jersey. It is just not consonant with the realities of modern publishing to attempt a state-by-state censorship. It -- we cannot have some states in which a book is published and others in which it is not. A publisher cannot gauge his ability to publish which comes down to a matter of money in that way. I would say that this nation cannot exist half-censored and half-free. Thank you.
Earl Warren: We'll recess now.