Warren E. Burger: We'll hear arguments next in 73-1942, Erznoznik against Jacksonville. Mr. Maness, you may proceed whenever you're ready.
William H. Maness: Mr. Chief Justice and may it please the Court. This is an appeal from a judgment of the highest court of the State of Florida in which a decision could be hand which decision upheld the unconstitutionally of the Jacksonville City ordinance. Which makes it unlawful ad provides, it is hereby declared a public nuisance to exhibit for certain persons to exhibit. Any motion picture in which the human male or female bare buttocks, human female bare breast or human bare pubic areas are shown if such motion picture is visible from any public street or public place. My client, Richard Erznoznik is the manager of the University Drive-In Theater. In 1972 shortly after the passage of this ordinance, he was charge with knowingly exhibiting a motion picture in which the human female buttocks and bare breast was shown said scenes being visible from a public street or a public place, and it was summons to appear in Court April 6, 1972. He appeared and by stipulation, the prosecution was stayed in order that we might test the constitutionality of this ordinance by an action for declaratory judgment in the Circuit Court of two-old-county which is the highest trial court. We filed that complaint, we had our trial. The trial court upheld the constitutionality of the statute the District Court of Appeals affirmed relying upon the Chemline case from the First Circuit Court of Appeals and the Supreme Court of Florida denied certiorari by 4-3 vote. Now, little more that it be said than has been said in my brief and the brief of amicus Motion Picture Association of America. What I would like to emphasize is the total failure of those who drafted this ordinance and the Florida Courts that have construed it to sharpen its focus and confine its proscriptions, so as not to censor or punish protected speech. We do not question the basic constitutional panel of the states and the cities to enact laws which punish or inhibit unprotected speech or which protect unwilling persons against obtrusive public displays of explicit sexual material which are both grossly offensive and unavoidable. But we do contend that such laws must be carefully drawn or authoritatively construed, so that they are not susceptible to application to speech protected by the First and the Fourteenth Amendment.
Lewis F. Powell, Jr.: Mr. Maness, Sir.
William H. Maness: Yes.
Lewis F. Powell, Jr.: If this still had been shown in a close theater, you wouldn’t be here would you?
William H. Maness: I would not.
Lewis F. Powell, Jr.: So?
William H. Maness: This was an ‘R’ rated film, the class of 74.
Lewis F. Powell, Jr.: Yes. I was wondering while this isn’t in a time and place issue rather than the First Amendment one.
William H. Maness: Well, the reason, we don't think it’s a time and place issue. We did plead that and announce it for declaratory decree is because basically, it gets down to whether or not the city council has the power to declare whatever it pleases a public nuisance. And in this instance, they've chosen to declare the mere showing of these anatomical parts a nuisance. So that it seems to me --
Lewis F. Powell, Jr.: Public, public showing is the issue?
William H. Maness: As showing on an outdoor movie screen visible from a public place.
Potter Stewart: Wait, Mr. Maness, what if the ordinance merely provided that it would be an offense to exhibit any movie of any kind that was visible from any public street or public place. Would that be more objectionable or constitutionally or less so?
William H. Maness: I would say it's be equally objectionable because that seeks to in -- assuming that it's declared a public nuisance also.
Potter Stewart: Yes, the same ordinance as what you have except that it just says any movie of any kind.
William H. Maness: I would say it's an unlawful infringement on protected speech, visual portrayals because --
Potter Stewart: Why wouldn't it be a perfectly good ordinance regulating traffic safety, you don't want people driving down the street looking at movies?
William H. Maness: Well, if it were related to traffic safety --
Potter Stewart: And why wouldn't --
William H. Maness: Then, well it wouldn’t be unless it was so construed. If by its very language it just says, “It shall be unlawful to exhibit on an outdoor screen visible from a public place of movie.”
Potter Stewart: Yes, visible from any public street.
William H. Maness: A movie.
Potter Stewart: I think any movie, yes.
William H. Maness: Well, I think you’d have to show that there’s some relationship between --
Potter Stewart: Oh, wouldn't there be for a rational relationship?
William H. Maness: I don't think so. Unless you said, where the exhibition is visible from a traveled highway and there is a showing --
Potter Stewart: But, generally public streets are traveled, aren't they?
William H. Maness: Well?
Potter Stewart: More or less.
William H. Maness: I would not -- I would say there's no relationship. The social benefit to be derived from prohibiting any movie visible from any public place, it seemed to me is not outweighed in the traffic sense. It does not out weigh the First Amendment --
William H. Rehnquist: Well, -- for the legislature to make or initially as to which social benefit weighs most heavily if it’s acting rationally?
William H. Maness: Well, if it is -- yes, if it's acting rationally. Yes, if there’s --
Lewis F. Powell, Jr.: Why I suppose if the matters if this ordinance could not be applied as the motion picture for example, that was exhibited at the time was Snow White, could it?
William H. Maness: No, it could not.
Lewis F. Powell, Jr.: So, to that extent, there's a distinction going would suggest that the purpose of this ordinance does not traffic safety.
William H. Maness: Correct. I was answering the speculated question but the purpose of this ordinance is definitely not traffic safety.
Potter Stewart: So this ordinance, we would say is more objectionable under the First and the Fourteenth Amendment then it might have it after all it would be.
William H. Maness: Much more. As I would -- If I get that far, as I --
William H. Rehnquist: Well, let me ask you another question. How can you be that positive if it's not traffic safety? Isn't it permissible for the Jacksonville City Council to say that bare breast and bare buttock maybe more distracting to drivers along the highway than the picture of Snow White?
William H. Maness: Yes, if they'd said that or if the Courts had construed that into it, maybe.
William H. Rehnquist: Well, but why they -- why does the legislature have to say all the reasons behind it? I mean, if an argument can now be advanced that supports the rationality, but what more does this Court need?
William H. Maness: Well, the same rationale that we've been talking about in defining word cases. That is that while you may construe that way and uphold its validity, it may not be applied that way by the police officer or the prosecutor who makes the charge. He may bring the prosecution simply because he's opposed to nudity in any form, in any time, in any place.
William H. Rehnquist: Well, what do you think of the motives?
Warren E. Burger: What do we care about the motives?
William H. Maness: Well --
Warren E. Burger: Not his motive --
William H. Maness: If we are, as I understand the protect -- protection we afford speech in this country. We are concerned about the motives of the persons who seek to inhibit it by some means other than no ordinance or a law that’s narrowly drawn or authoritatively construed to get at only unprotected speech or unprotected conduct. Now, if you can put a law of books that can be construed in a half of dozen ways, then we violate that principle. If that principle is to be violated, then this Court can say so. But, it seems to me if you compare this to the defining words cases, you have to say, if the City of Jacksonville wants to do that. They've got to draw this ordinance more carefully or it's got to be authoritatively construed not to infringe on otherwise protected speech.
William H. Rehnquist: Would you say that the City of Jacksonville could go beyond what has been called obscene by this Court and make a broader proscription. And just obscenity when you're talking about projecting it beyond the theater walls to the public?
William H. Maness: Yes, I think they'd probably could something more obscene then mere nudity.
William H. Rehnquist: Well, something less obscene than what this Court has said can be prohibited by the State within the walls of the theater where everybody is consented to see it.
William H. Maness: Well, that's a very difficult question to answer because I have tried to figure out how this ordinance could have been authoritatively construed in the Florida Courts to achieve a purpose that does not trench upon protected speech and I don’t see how it can. I don't see how you can draw such an ordinance.
William H. Rehnquist: What is protected speech as you're using it? Is it anything that's not obscene?
William H. Maness: No. It's anything that this Court has held unprotected such as lewd and obscene, profane, libelous, insulting, confiding words, words which are very arrogant, not words portray or portrayals or pictures that tend to insight immediate breach of the peace or something of that sort.
William H. Rehnquist: But then you're saying that Jacksonville can't prohibit in an outdoor movie that's projected beyond the walls that of the theater. Anything that it couldn't prohibit in an indoor movie?
William H. Maness: No, I'm not really saying that. I don't intend to say that. I intend -- what I intend to say is that if they relate it to something that isn't in fact a nuisance. They can prohibit images on a screen that would create dangers to the citizens. But --
Lewis F. Powell, Jr.: But don't you think Mr. Maness, for example that there are circumstances in which a state might say as to an open-air movie. Now, that even an exhibition of a picture in which react to simply recite the First Amendment.
William H. Maness: They could prohibit it just like they could prohibit outdoor and in other words, they could prohibit outdoor theaters.
Lewis F. Powell, Jr.: In the interest to safety?
William H. Maness: I suppose they could. But until they decide to prohibit outdoor theaters that --
Harry A. Blackmun: Can we be so very sure that is what you're talking about?
William H. Maness: Well, I think so, there's we have
Byron R. White: What about that, what about the nude performances in the public park. Let's say there's a summer play series in the public park where and it's a municipal -- it's in the park and -- but there's a law that says as long as you’re showing it in an open-air and people can come and go unless it's public, no nudity. No nudes in this summer plays in the park, is that too bad?
William H. Maness: Well, as I read. I think it's a question of -- I think the city fathers could decide that question like they've decided they don't own some of the beaches down in Florida but they even had a vote as to whether or not --
Byron R. White: So, you would say that’s acceptable?
William H. Maness: Acceptable with the proper words --
Byron R. White: But it's saying, if you're going to walk down the street, wear some clothes.
William H. Maness: Yes, at this point in history. I think it probably is.
Warren E. Burger: Do you think the City could have an ordinance prohibiting soundtracks from operating during hours, let us say after 10 o’clock at night?
William H. Maness: Yes, I think so.
Warren E. Burger: Or at anytime that the sound level was over a certain decibel level?
William H. Maness: I think so.
Warren E. Burger: But what if -- what if the candidates running for public office and he wants to make a speech? That's one of the highest forms of the First Amendment right, isn't it?
William H. Maness: It is but you know, it's the question who's making the judgment in a --
Warren E. Burger: But you concede that if it annoys, if it's loud enough so that rationally it can be said that this annoys a lot of people and maybe affects their hearing but then it can be prohibited.
William H. Maness: Mr. Chief Justice, I'm under the impression that under the rules laid down by this Court that such an ordinance could be narrowly drawn authoritatively construed and upheld. Eventhough, it does in trench strongly on First Amendment rights. But I don't really see the parallel between that and mere nudity on an outdoor movie screen if you’re going to have any films of any kind.
Byron R. White: But if the city fathers that what you view the screen is that it's all located that anybody wants to have nice speech of stop and watch the entire movie. And the fact is that at this corner the children gather --
William H. Maness: If there was --
Byron R. White: To watch the movies and if they're going -- if you want your screen in that location, just don't show x-rated movies. If the kids are going to -- you're going to let the kids gather outside and watch this -- this -- if you want to just keep -- just clean up your movies a little bit.
William H. Maness: Well, if they passed an ordinance such as you're speaking of and related it specifically to traffic problems --
Byron R. White: That's not what I'm talking about. I'm talking about children.
William H. Maness: Alright, if they related the ordinance to children? I think they might very well come up with an ordinance that could stand constitutional master. But this ordinance is no related to any of those things.
Byron R. White: What would happen to the case as that -- who is watching these movies?
William H. Maness: That, yes, but the children would be outside watching the movies if it was Mary Poppins
Byron R. White: Oh, I know. That and nobody objects to that saying, City Council --
William H. Maness: No. Right.
Byron R. White: Agrees to that showing is -- the parents in town object to the screen showing x-rated movies to their children?
William H. Maness: Well, we're not talking about x-rated movie. We're talking about one hour movie, the class of ’74. This is not a --
Byron R. White: Oh, I know but your position covers all -- covers x-rated movies or any other related movie, so let's don’t --
Thurgood Marshall: So that is an ‘R’ rated movie up to the time to decide whether the child goes or not?
William H. Maness: Yes. Yes, under 17.
Thurgood Marshall: Well, the child and the parent had no jurisdiction of whether the child stands on the corner, will see it?
William H. Maness: Well, you know we have other laws that such as laws against trespass and littering, and other ways of permitting those who are inside the theater to see what they want to see without interference from those outside the theater.
Thurgood Marshall: But this is restricted to be outside?
William H. Maness: This ordinance is restricted, so restricted yes.
Thurgood Marshall: And it merely says that you shouldn't show this picture to children without their parent's consent?
William H. Maness: Mr. Justice Marshall, it doesn't mentioned children.
Thurgood Marshall: I know it doesn't but that’s what happened.
William H. Maness: Well, I doubt it that’s what happened.
Thurgood Marshall: But you don't say children are interested in watching ‘R’ rated movies.
William H. Maness: I think the children go in and they want to see it. You know, they get their parents permission, they get in car and they go in. But that’s beside the point, of course --
Thurgood Marshall: It is beside the point because mine is when the parents say, “Don’t go to that theater.” And then the child said, “Where, well I won’t go to the theater to see it.” And he just goes to the corner and looks for free.
William H. Maness: Well --
Thurgood Marshall: This is right--
William H. Maness: That happens.
Thurgood Marshall: And that’s part of what this ordinance is aimed at.
William H. Maness: But if he was looking at this --
Thurgood Marshall: It isn't part of what this ordinance is aimed at?
William H. Maness: Yes. And if he were looking at a travel law of foreign lands, or art museums, or a health picture, or even a news room, he might also see a bare female breast, or bare male or female buttocks and that would be the end of the movie. So, the point is, can the movie be suppress simply and solely because it has scenes of this anatomical parts in it regardless of the context. And it seems to me that this case falls right in with the whole line of cases of this Court --
Thurgood Marshall: Let's get back to my Brother Rehnquist's point. I mean, the average person driving on the street if he sees a bare buttocks on the wall over there, he’s going to look at it.
William H. Maness: Well, if he recognizes it as such.
Thurgood Marshall: Well, I would assume that the average person can recognize this.
William H. Maness: Well, I've driven by these movie screens. And I am only speaking from my own experience and I have seen figures on the screen and not really known what they were. I didn't give that much of an attention to it. You see movement, you see flashes, and you see color.
Warren E. Burger: You're suggesting that in order to sustain one statute it must be demonstrated that it's reaches perfect candidate to either that or in combination with other statutes. All such conduct is completely prescribed and prohibited while there's no such doctrine of laws out, is there?
William H. Maness: No. Not that broad.
Warren E. Burger: Statutes against murder is to survive eventhough in murders are continued at a very great rate.
William H. Maness: And we define the degrees of murder, first, second, third, manslaughter, justifiable or excusable homicide. But we don't define the degrees of offense that we commit when one scene of nudity comes on the screen.
Byron R. White: Mr. Maness, what is the consequence of under this ordinance if the establishment is declared a nuisance? Is it just that he is convicted of maintaining a public nuisance? Is it a misdemeanor?
William H. Maness: It's a low grade misdemeanor. But it's not a matter of establishing the theater as being a nuisance. It just simply --
Byron R. White: Showing of --
William H. Maness: It subjects the projectionist or the manager or ticket taker, someone of those to a criminal penalty.
Byron R. White: Well, so that the word nuisance in there is sort of passage in the sense the ordinance could've said, whoever shows on a screen visible to the public street commits a misdemeanor?
William H. Maness: I would say that that's pretty much correct but --
Byron R. White: But it doesn't -- I mean, it doesn't have the consequence, ordinary consequence with news of being able to shut it down?
William H. Maness: No. It does not.
Byron R. White: It doesn't permit the city to shut down --
William H. Maness: It says, it's unlawful and hereby declared a public nuisance to do this. But the public nuisance doctrine, I think is the justification for inhibiting it.
Byron R. White: But usually you're beating nuisances.
William H. Maness: Right.
Byron R. White: But indeed it does --
William H. Maness: It's the right. They usually do but in this --
Byron R. White: But the only thing that's a nuisance is that that single showing or whatever it is?
William H. Maness: Well, I don't think that's not even a nuisance. That's just the basis on which they justify make another penalty.
Byron R. White: Okay, thank you.
William H. Maness: This -- well, I started to say, we do not -- but we do contend that such laws must be carefully drawn or authoritatively construed and I want to point out some of the reach to this ordinance. It manifests no particular concern for persons in the privacy of their homes and yards, only persons in public streets of places. It does not deal with captive audiences, audiences who cannot escape looking or being bombarded or who cannot escape being force to confront a situation. It manifests no concern for highway safety or traffic hazards. It is not concern with public displays of scenes depicting explicit sexual activity and is not related to obscenity or pornography. It does not deal with materials so grossly offensive or emotionally disturbing to a non-unwilling audience as to be the proper subject of criminal proscription. It takes no account of the duration or the context of such nudity whether the scenes are from a travel log, etcetera and the ordinance classes violently, I think, with the long lying of cases in this Court which have drawn a distinction between protected and unprotected speech, the fighting word cases. What is been said by this Court in the majority and the dissenting opinions in those cases from Cohen versus California to Caroline versus City of Cincinnati. I think it applies to this case and condemned this ordinance. For example, the Court said in Cohen versus California, “The ability of Government to shut off this course, solely to protect others from hearing it is dependent upon showing that substantial privacy interest of being invaded in an essentially intolerable manner.” This ordinance has not been so construed. Now, even the decent in by Mr. Justice Powell with whom the Chief Justice and Mr. Justice Blackmun joined in Rosenfeld versus New Jersey. If you take those principles and apply them to this case, this ordinance cannot stand constitutional master because it does nothing and says nothing to inhibit the traditionally unprotected speech, and on the other hand where movies are concerned. It can never be said that the Chief and the child are no essential part of the exposition of ideas or that such as positions have so slight social value as to be step to truth that any benefit that make -- that maybe derive from them is clearly outweighed by the social interest in order and morality. Though perhaps implied, in the city's brief and truth, their ordinance in question does not even concern itself with children, children littering or trespassing, and at least the Florida Courts have not so construed it in this Court must take it on its phase. I'll save the rest of my time.
Warren E. Burger: Very well, Mr. Maness. Mr. Allen?
William Lee Allen: Mr. Chief Justice and may it please the Court. Sitting with me at the counsel table is Harry Shorstein, the general counsel of the city, I am the assistant counsel. And most of the cases set forth in the appellant's brief and the argument made here today would suggest that what we’re dealing with is obscenity. But our position is at this particular ordinance deals solely with a public nuisance which has been long recognized to be the power and the duty of municipalities at common law to obey. Now, there's been some discussion at the ordinance, it doesn't deal specifically with children and doesn’t deal specifically with traffic. Normally, ordinances are not written in a; whereas, whereas, whereas form like a resolution. I think Court's know and this Court knows what everyone else knows and that is as one drives along the highway, one can see driving screen, screens, raises up in the air. And if we see something and catches our eye, we tend to look at it and it could distract us and cause us problems. I think we know as the file judge did in this case that children make up a percentage, a growing percentage that a population in this country. Certainly, the ordinance does not purport to regulate obscenity, only nudity and I certainly would suggest traffic. The willful and intentional exposure of one's private parts is been a crime at the common law. One of the cases sided in our brief dealt with some swimmers in the national forest who had been swimming in the nude. Then they decided they want to get him some watermelons into relying upon the riverbank in the nude eating watermelons. Their conviction was upheld by the Tenth Circuit and I think properly so. Certainly, if you cannot prohibit this at the driving, you cannot prohibit it at the Hollywood Bowl or any place out in the public. You could not prohibit people walking around in the nude on public streets.
Potter Stewart: What's this ordinance say this perhaps not important but it goes -- it doesn't apply only to people in the nude. It didn't apply to the same kind address that people wherein on bathing beaches like clearly some of them.
William Lee Allen: Well, Mr. Justice Stewart I suggest that people don't walk around on bathing beaches most places with bare female breast or with bear buttock showing or with the pubic areas showing in but --
Potter Stewart: No. But they do is and there’s some of the saw the language but I don't really think it's very important.
William Lee Allen: Yes. Some of the bathing suits that are seen, we may reach that point almost but not quite.
Potter Stewart: In many bathing suits reach to the point covered by some of this language.
William Lee Allen: Yes. Now, from the Bloss case which is --
Harry A. Blackmun: And now on it, there were displayed copies of the freezes around this room. What if we're going to follow the ordinance?
William Lee Allen: Well, Your Honor, Mr. Maness -- I don't -- there maybe some that Mr. Maness --
Harry A. Blackmun: Well, up there is one and you an unclothed figure and there's one back there?
William Lee Allen: Well, this probably would serve Mr. Maness says put some pictures in the brief that is submitted to the Court showing on the wall of the do all kind of courthouse. Justice and a male along with her and of course, they have grapes across the pubic areas and they are no bare buttocks and her bare breast are showing and some of these would run a foul but normally small children I would submit Your Honor are not the present day in this --
Harry A. Blackmun: Although,--
William Lee Allen: Sir?
Harry A. Blackmun: Look again.
William Lee Allen: Your Honor, I see a few. I would never further agree to bunch out on these smaller children Your Honor. But if --
Harry A. Blackmun: But if he asked, how are your ordinance protects children standing in an adjacent private yard, adjacent to the movie theater complex.
William Lee Allen: I think those are intent Mr. Justice Blackmun, is the evidence shows and the record shows. There are several private streets with private residences and there was one lady testifying in the case that she could sit down on her front porch and actually watch the movie. There are pictures in there but answered before this Court showing the screen.
Harry A. Blackmun: Yes, but they are not in a public place.
William Lee Allen: While the streets have been held to be a public places Your Honor.
Harry A. Blackmun: But if she's in a -- it says is visible from many public street or public place. Suppose the backyard adjoins the parking place for the theater?
William Lee Allen: I would submit sir, that the backyard would not be a public place.
Harry A. Blackmun: And the youngsters are all lined up there along the fence. Your ordinance doesn't protect them in any way?
William Lee Allen: No, sir. And in the Bloss case cited in my brief gave some idea of the size screen there. I think they help us realize what were talking about, 35 feet by 70 feet and 54 feet above the ground. So, if we have a nude breast or bare buttocks or pubic areas, they're magnified considerably. I think the example use in our brief was that of a strict which our fad is fizzled out to some extent. But you'd have a king-size streakier, streaking across the end and if there's -- if you can't prohibit this, as we again indicate you could put home movies out in your backyards. Suppose you and your family belong the nudist camp. You took some films at the nudist camp. You wanted to show those and they would be visible from the street. You got to set up out in the front yard. I submit this would be clearly violent. We sight the Hoffman case where a go-go dancer was nude. Dancing and displaying her private parts. Now, this Court dismissed the appeal. There again, this was a matter of nudity which I submit that municipalities certain have not only the right that the obligation to maintain. Certainly, speaking of growing an ordinance narrowly to protect juveniles, it isn't like prior censorship or books that can be bought at bookstores or films that can be bought, there’s no way. Mr. Maness spoke of this and he's a former State Circuit Judge. There's no way you could draw an ordinance spelling all this out. It would to submit it would be so long and involve and contradictory in terms that it would just be no way that it could be done. Now, I might touch on what this Court has said from time to time about these matters in the Burstyn case in which the Court first held freedom of speech to apply to movie theaters. The Court said at page 502, “It does not follow that the constitutional requires absolute freedom to exhibit every motion picture of every kind at all times and all places, that’s what we have here.” Then the Redrup case spoke about protecting juveniles. In Stanley versus Georgia, this Court spoke of the danger of juveniles finding things. Now, the appellant in his brief says, “Well, that most parents if they are honest will admit that they don’t know what is proper. Well, that’s something that a parent cannot advocate his responsibility. Where you're conflicting testimonies from various child experts, to Dr. Spock and others and possible to some of the permissiveness that does emerge the greatest part of the problem. But it's a parent's right, I think, we're speaking of constitutional rights. It's his duty to see what his children see and don't see. And I would like to talk about the Rabeck case decided most recently by this Court, which I think this is what we're talking about and its only opinion of this Court that I could find dealing with driving-in theaters. The question there was these sexually frank scenes but the statute did not make it clear that there would be punishment for showing it at the drive-in, whereas you would be permitted at the close-type theater. But as said by the Chief Justice joined by Mr. Rehnquist in the separate concurring opinions, public displays of explicit material such as are described in this record are not significantly different from any noxious public nuisance, traditionally within the power of the states to regulate and prohibit, and in my view involved no significant countervailing First Amendment considerations, an offensive nuisance. Certainly, it's something that has to be considerably weighing of the interest of the public is against the right of the man showing the movie. They're not prohibited from showing nude movies. They're not prohibited from having consenting adults or others coming in. They only provision of the ordinance is if you're going to show a movie which is visible from a public street or a public place. Then, you have to not show a movie which has bare breast, bare buttocks or the bare pubic hairs. Thank you.
Harry A. Blackmun: And that would include the picture of a fairly newly born baby in given about and some about a man?
William Lee Allen: Well, Mr. Justice Blackmun, this would be the Harris story that Mr. Maness is raising his brief, the little girl that we've all seen in the Coppertone Sunshine advertisements where the dog's pulling their swimming trunks down.
Harry A. Blackmun: This is the subject to a family affection.
William Lee Allen: Yes.
Harry A. Blackmun: And I just -- I think we're talking about over breaths here primarily.
William Lee Allen: Well, I would suggest that I -- this cannot conceived of anyone being prosecuted if they showed a babies bare buttocks that someone was powdering.
Warren E. Burger: You have any further Mr. Maness?
William H. Maness: Mr. Chief Justice and if it please the Court. I would like to just to add this argument. I realized that we can draw legal nice it is about the words -- was and the word force in unparticular like Mr. Justice -- Mr. Chief Justice, language in Reed versus Washington where he said, “I for one would be unwilling to hold that the First Amendment prevents a State from prohibiting such a public display of scenes depicting explicit sexual activities, if the State undertook to do so under a statute narrowly drawn to protect the public from such potential exposure. I don't think we are quarrelling with that language ourselves. What I'm saying is, the City claims the power to declare and abate nuisances and that is determination is conclusive and binding on the Court. And if such be so, while which we deny, it is a short step from declaring mere nudity a public nuisance when exhibited on an outdoor movie screen visible from a public place regardless of its context of his presentation and from there declaring movies with unpopular themes or ideas without nudity of public nuisance. To delete one scene from any movie without regarding to its relation to the rest of the movie because the city council brands that scene, a public nuisance is to give the counsel the unbridle power of censorship of ideas and the power to suppress. Perhaps, the one idea that just might help society solved the hang-ups that inhibit so many people in relationships with others, particularly between the sexes and among the sexes and for that matter races. The city council does not speak for me when it determines that a bare human female breast on an outdoor movie screen is a public nuisance and it smacks of the male chauvinism then I think it is. Women and men can be beautiful, ugly, good, bad, angels or devils, dressed or undress and the full range of human emotions maybe stirred, calmed, excited, and inspired by variety of events and all stages of dress and undress. People are humans; different, funny, sad, good, and depicting life in the movies, is and can be educational, entertaining and even inspirational. One who denies the beauty of the human species or its potential for beauty simply because its form is not draped in clothing? We have device for our own creature comforts sends to impress others denies God’s handy work and has never strolled the beaches on a hot summer day. Do clothes make the women or the woman or does the woman make the clothes? Just as we are free to choose our dress or undress on the beach so, moviemakers and exhibitors on outdoor screen should not be denied the full range of their creativity simply because someone may look without paying or be offended without understanding. The public nuisance doctrine is inappropriate. The ordinance is overbroad and not carefully drawn or authoritatively construed and does reach there -- and it is not limited to unprotected speech.
Warren E. Burger: Mr. Maness. Thank you gentlemen. The case is submitted.


William H. Rehnquist: We'll hear argument now in No. 90-6704, David Dawson v. Delaware. Mr. O'Donnell.
Bernard J. O'Donnell: Good afternoon, Mr. Chief Justice, and may it please the Court: This case presents a very narrow issue; may States equate speech or association entitled to protection under the First Amendment with character evidence, and thereby enhance a criminal sentence, particularly so as to impose a sentence of death, when those beliefs are unrelated to the offense. As Delaware concedes in its brief, the petitioner, David Dawson, invokes two traditional First Amendment precepts. First, that criminal penalties can never be imposed nor aggravated because of an individual's beliefs; and secondly, that Government, here in the form of the sentencing jury, must always remain value or content neutral within the realm of a person's beliefs or views. Delaware concedes that while it could not have made constitutionally protected belief a statutory aggravating circumstance, it instead argues the radical proposition that the traditional First Amendment constraints against governmental-viewpoint punishment are not applicable to the highly-discretionary, weighing stage of a death penalty proceeding in order to determine whether a particular... particular defendant should live or die. This Court, however, has made it clear that States, in inflicting punishment... particularly in inflicting the penalty of death... may not attach the aggravating label to factors that are constitutionally impermissible. Delaware has done just that in this case.
Antonin Scalia: Well, why do you say particularly with respect to the punishment of death? I mean I assume that if your proposition is correct, it would have to be correct with respect to any sentencing. I mean, if it's a First Amendment violation, you wouldn't say that you can, you know, that it's good for other punishments, for life imprisonment, for example?
Bernard J. O'Donnell: That is correct, Your Honor. The passage, however, I was referring to is the Court's principle as stated in Zant v. Stevens, which was a death penalty case.
Antonin Scalia: You're not relying on death as different here? You're--
Bernard J. O'Donnell: No, sir, not with respect to this claim.
William H. Rehnquist: --Question presented, Mr. O'Donnell, has the qualification that the murder here had no racial motivations or connections. You're not arguing, then, that if the murder did have racial connections or motivations the State couldn't have used this evidence?
Bernard J. O'Donnell: Under that circumstance, Chief Justice Rehnquist, the State could use that as an aggravating factor.
William H. Rehnquist: So that's one limitation, isn't it, on your very broad proposition?
Bernard J. O'Donnell: Yes, it is. There is a broad... the petitioner is stating a broad proposition. However, there are narrow circumstances which this Court has recognized where limited use of a belief or association may be used in order to determine whether the penalty of death or life imprisonment is appropriate.
Speaker: xxx--
Bernard J. O'Donnell: Yes, Justice White.
Anthony M. Kennedy: --Is it simply a First Amendment argnment you're making? Suppose, for instance, that we were to conclude that character, associations, beliefs, are relevant to a whole range of sentencing issues. But that this particular reference might be unduly prejudicial. Have you preserved a due process argument? Or is it simply a First Amendment inquiry that we're making?
Bernard J. O'Donnell: It is a First Amendment inquiry, Your Honor. However, subsumed within that, or, more or less the overarching consideration is... but more particularly subsumed within that claim is the due process claim simply because it would be unfair to say to individuals within our society who are protected by... say the First Amendment... to say to them that, well, you... the Government may not abridge freedom of speech.
Anthony M. Kennedy: Would you--
Bernard J. O'Donnell: It says, however, you're going to be punished in this instance.
Anthony M. Kennedy: --Would you disagree with the comment that this is simply a question of relevance?
Bernard J. O'Donnell: It is not simply a question of relevance. Evidence which is arguably relevant may nonetheless be barred by some constitutional prohibition. I would offer the Court as an example an instance in perhaps a... in a capital proceeding where the defendant had asserted his right to remain silent, had asserted his Fifth Amendment right to remain silent throughout the trial, as in throughout the penalty proceeding. Although lack of remorse is a criteria, is a relevant criteria for determining whether a person should live or die, if the State, nonetheless, argued to the jury under those circumstances that an additional reason, or the very reason you should put this man to death is because you have not heard him apologize to you or anyone else... although the lack of remorse is relevant, nonetheless, that would be barred under the Fifth Amendment.
Anthony M. Kennedy: Well, the Fifth Amendment is in large part a procedural safeguard at trial, for a systemic reason. But your answer to the Chief Justice's question seems to me to indicate that this is just a question of relevance. In the hypothetical he put to you, yes, the evidence is relevant, it comes in.
Bernard J. O'Donnell: It can... all sorts of evidence can reflect on character. But then nonetheless, in any circumstance, where a person's beliefs are used to impose punishment, that is... that is prohibited by the First Amendment. And there are only certain limited circumstances in which any evidence can come into evidence, and only then for limited purposes. And, in fact, in some of those instances, the trial courts or this Court has recognized that the trial courts have, in fact, instructed juries as to that limited purpose.
William H. Rehnquist: Well, what about a sentencing proceeding in a noncapital case where you deal with a probation interview, and there are probation officers interviewing? The defendant who has been convicted, but not yet sentenced says... and the probation officer says, are you sorry for having done this? And he says, no, I'm not sorry. I... I believe the guy should have been killed, and that's the way I feel about it. I don't have any remorse at all. Now that, presumably, is a belief he has. But surely that could be taken into consideration.
Bernard J. O'Donnell: Well, under those circumstances, Your Honor, it's not... there'd be no First Amendment protection that would be relevant that determines his propensity as to future conduct.
William H. Rehnquist: Well, it's his particular belief that this guy should have been killed.
Bernard J. O'Donnell: Well, under those circumstances, it would be relevant, because his belief took that belief out of the context of First Amendment protection, because the belief resulted in unlawful action, or a crime.
William H. Rehnquist: So it's like your exception for a racially motivated crime, and in this case?
Bernard J. O'Donnell: Yes, Your Honor, very much so.
Antonin Scalia: Well, what about... what about in the probation report it... or in any sentencing proceeding, evidence is brought in to the effect that this individual was a really terrible son? His mother, you know, has never heard from him. She's living in poverty, you know, things of that sort. Can that be in there?
Bernard J. O'Donnell: Yes, Your Honor, it could. Because there's no--
Antonin Scalia: All right, but what if it said he... he believes that mothers should be... should be disregarded and allowed to live in poverty? That must be disregarded?
Bernard J. O'Donnell: --If he has a belief--
Antonin Scalia: I mean, if the one is relevant to what sentence he should get, it seems to me the other is relevant to what sentence he should get.
Bernard J. O'Donnell: --If it's--
Antonin Scalia: I mean, the fact that he left his mother to live in poverty is only important because it shows that he's the kind of a guy who believes it's okay to leave your mother to live in poverty. But if he says that directly, we can't use it. That doesn't seem to make sense to me.
Bernard J. O'Donnell: --It does make sense in the sense he's not being punished for his belief. It's merely being used, let's say, to evaluate his credibility as to other evidence which he might offered.
Antonin Scalia: No, that's not at all. It's being used to show that this is a pretty bad person. And I'm sure there are... there are things like that in probation reports.
Bernard J. O'Donnell: Under those circumstances... because it's not an abstract idea, it's not... it's an abstraction. It has nothing to do with... it's with abstraction, but perhaps relationship with others. It's punishable, for that reason, too... not as an abstract idea, because he endorses or embraces that abstract idea. It's because he has not... he has not offered his mother any-- If that is, in fact, so, if he has not offered his mother any support, he has been unkind to her--
Antonin Scalia: Right.
Bernard J. O'Donnell: --it's perfectly... it's pertinent to character.
Antonin Scalia: That shows his character?
Bernard J. O'Donnell: Ah--
Antonin Scalia: But if he said, I don't have a mother, but by God, if I had one, I'll tell you, I'd let her live in poverty and starve to death?
Bernard J. O'Donnell: --Well, were it... were it--
Antonin Scalia: That does not show his character?
Bernard J. O'Donnell: --Were it related to the offense itself, somehow, if there were... if there were a violation of some obligation, if it was the death of his child, or his stepchild, or wherever... whatever, it would provide some insight into his state of mind with respect to that offense. But he could not be punished for his belief with respect to his mother, because that, you know, is unrelated to the offense.
Antonin Scalia: Well, I'm not punishing him for that belief. I'm punishing him because on the basis of everything I know about him, he is a bad character. That is one of a whole mosaic of things that just comes out with a picture of a bad character.
Bernard J. O'Donnell: I do not think evidence of that nature is... as such, is the abstraction, or whatever, of... he's not being punished for the idea itself. It shows what... how it might relate as to the offense having been committed. For instance, if it... well, if it were in respect to a totally unrelated offense, I would say it's not... I'd simply say there's no First Amendment protection under those circumstances. And arguably, it's not even relevant.
Byron R. White: Well, does this case really involve something about beliefs? I thought it was just membership in a certain gang.
Bernard J. O'Donnell: Yes, it is about beliefs.
Byron R. White: What?
Bernard J. O'Donnell: It is about beliefs, because the evidence concerned his racist beliefs. And the jury was asked--
Byron R. White: I thought it was just... it was just that he was a member of a... of a prison gang that was racist. Isn't that all it was?
Bernard J. O'Donnell: --An association is not punishable, Your Honor.
Byron R. White: Well, I'd hope so, but it isn't... but this isn't technically beliefs. There wasn't any evidence about what the gang's beliefs were, except for being racial.
Bernard J. O'Donnell: There was no evidence besides that. And that--
Byron R. White: So it was just his membership?
Bernard J. O'Donnell: --Yes, sir, his membership in a gang, which--
Byron R. White: And there was no evidence about what his connection with the gang was, other than membership?
Bernard J. O'Donnell: --That is... that is correct. And that the gang embraced what most people in society consider abhorrent beliefs, unpopular beliefs. And that was used as the criteria--
Byron R. White: Well, associational rights aren't impervious too, are they?
Bernard J. O'Donnell: --No, sir, they are not, if the association... if through the association it's evident that the... the person is inciting or attempting to provoke unlawful action as a result of that association, that... that is not impermeable.
William H. Rehnquist: So you're-- --There was a long colloquy between the prosecutor and the defendant before the... was it the Superior Court judge before whom this case was tried?
Bernard J. O'Donnell: Yes, sir.
William H. Rehnquist: As to just what... what should come in about this membership. And what the judge actually let in was not nearly as much, as I read it, as the State said they could prove. Is that your impression too?
Bernard J. O'Donnell: Well, with respect to that, all the State was willing to prove, in addition... and they were satisfied with what they did prove, but what they offered, or proffered, rather, is evidence of other persons' beliefs or gangs in other States. Nonetheless, it was not pertinent to this defendant's.
William H. Rehnquist: Yeah, that never... and that never went to the jury here.
Bernard J. O'Donnell: It never went to the jury. And that, in and of itself, would have been... would have been constitutionally impermissible.
William H. Rehnquist: So what went to the jury was basically if they... saying they could take into consideration his membership in this organization which had a particular belief, but which was not characterized as advocating any particular action. Is that true?
Bernard J. O'Donnell: It was not characterized as advocating any particular action. If, in fact, it was characterized as advocating any particular unlawful action, it would be--
David H. Souter: Well, how likely has the unlawful action got to be? I mean you're not proposing a kind of clear and present danger test, are you? That if he is... if, in this... in a capital case, if he is not sentenced to death that he will engage in this behavior? Are you arguing simply that the belief indicates a propensity... the statement of belief indicates a propensity to engage in this kind of behavior? Is that enough?
Bernard J. O'Donnell: --A propensity is not enough, Your Honor. It must be shown, or there must be a foundation for distinguishing... distinguishing between the belief in abstract doctrine and the advocacy of unlawful action.
David H. Souter: Yeah, well what is... what is the line-drawing criterion? That's... in effect, that's what you want us to hold. How would we write the sentence that encapsulates that?
Bernard J. O'Donnell: Based on decisions by the Court in, for instance, Yates and, and Noto, it would be along the lines to the effect where the belief, or where there is advocacy of unlawful action, is based on these facts. There it takes it out of the realm of protection by the First Amendment.
David H. Souter: So there's, again... I think you're saying that there need not be, in order to make the belief evidence admissible, there need not be any particular degree of probability that that belief would, in fact, be... form the basis for later action, but merely a possibility that it form a motive for later action. Is that true?
Bernard J. O'Donnell: That--
David H. Souter: Is that what you're saying?
Bernard J. O'Donnell: --That is true. And under the circumstances--
David H. Souter: Then why doesn't any belief qualify?
Bernard J. O'Donnell: --Any belief would qualify for protection, so long as it is advocacy of an abstract doctrine and does not incite or there's no attempt to incite unlawful action, or provoke it.
David H. Souter: No, but you're not... I don't think you're saying that the kind of relevant and admissible belief evidence must consist of statements of incitement. You're saying, somehow, that they must consist of statements which, if they were followed by the defendant, would entail unlawful conduct. That's true, isn't it?
Bernard J. O'Donnell: That is true.
David H. Souter: Well, there's no incitement.
Bernard J. O'Donnell: If this defendant--
David H. Souter: I mean we're not talking about statements of incitement. We're simply talking about statements of belief. And what is the criterion for judging between some statements of belief which may be considered, and others which may not be? Two possibilities come to mind. One is, there must be some high... some degree of probability that he will actually act on the statement. And I think you've said that's not your criterion. The other possibility is that the statement must be... must somehow relate to unlawful conduct which is identical to or close to the conduct for which he is being punished in this case. Would that be your criterion?
Bernard J. O'Donnell: --That would be the criteria, so long as there is advocacy to commit unlawful action. If it was simply an abstract doctrine... and I point out--
David H. Souter: So if you're centering... if you're sentencing then, a burglar, a high degree of probability based even on advocacy, even on statements of advocacy of murder would be irrelevant?
Bernard J. O'Donnell: --Under those circumstances it would not be. For instance, where there's evidence that he had advocated the death of a witness against him within the prison, he had solicited a crime, unquestionably. That advocacy would be outside the scope of any arguable First Amendment protection.
David H. Souter: Even when he's being sentenced for burglary?
Bernard J. O'Donnell: Yes, sir... yes, sir.
David H. Souter: Well, then aren't you saying that advocacy of any crime will satisfy your test? But if the behavior is noncriminal, it's got to satisfy some further relevance test... if the belief is of noncriminal behavior it's got to satisfy a different relevance test?
Bernard J. O'Donnell: No, I believe I'm saying it's the advocacy to commit this crime, with the intent that the crime be accomplished.
David H. Souter: Okay.
Bernard J. O'Donnell: If it is simply... merely opposition to an abstract idea, or to a principle... let's say the principles reflected in the Thirteenth, and Fourteenth, and Fifteenth Amendments... that's advocacy of abstract doctrine. And that's protected under the First Amendment.
Antonin Scalia: Even if you limit it that way, though, you're really not describing a doctrine that tracks the doctrine of the First Amendment. Because as you've just described it, you could put before the jury the fact that this person was a member of the Communist Party.
Bernard J. O'Donnell: No, I believe that I--
Antonin Scalia: Advocates the violent overthrow of the Government. Now, to be sure, for the First Amendment, you can't put somebody in jail for doing that. Because advocacy is not enough. There has to be incitement, or... but as you've described it, you don't need the incitement, you just need advocacy of something that's unlawful. It certainly is unlawful violently to overthrow the U.S. Government. So you could be... put before the jury, ladies and gentlemen, this is a bad person. He advocates, right? He's a member of the Communist Party.
Bernard J. O'Donnell: --That's correct.
Antonin Scalia: You could do that.
Bernard J. O'Donnell: To the extent that I suggested that advocacy didn't intend that those ends be accomplished, and they were likely to be accomplished, I may have misspoke. There has to be some... we must cross the line of just advocacy of an abstract doctrine to take it outside the First... the realm of First Amendment protection.
William H. Rehnquist: Mr. O'Donnell, I wonder if your case shouldn't be aimed more at membership rather than advocacy? Let me read to you the stipulation which, I understand, is what went to the jury in this case. The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many State prisons, including Delaware. Now, it says nothing about what this fellow believes. It's simply talking about his membership in a... in a gang which is described as a white racist prison gang. I think you may be biting off more than you need to when you get into all of this about advocacy.
Bernard J. O'Donnell: That is, in fact, correct... that in this case we are dealing with association, and an association with others who embrace beliefs, beliefs protected by the First Amendment, as odious as those beliefs might be. But there's no--
Anthony M. Kennedy: Well, in response to the Chief Justice's question, you don't even need to concede that he belonged to a gang that had racist views. The stipulation says the California gang had racist views, not that this one did.
Bernard J. O'Donnell: --The stipulation said that. However, there was some evidence introduced to the effect that there was an association... circumstantial evidence of an association. The State introduced a tattoo, and argued that was therefore associated with the gangs.
Byron R. White: But there was no direct evidence or stipulation about what his own beliefs were.
Bernard J. O'Donnell: No.
Byron R. White: Now, he might have joined these gangs as a matter of self-protection.
Bernard J. O'Donnell: That is... that could well be so.
Byron R. White: And I suppose you or... did you try the case?
Bernard J. O'Donnell: No, sir, I did not.
Byron R. White: Well, I suppose trial counsel was perfectly free to argue to the jury the... the weight of this evidence, even if it was admissible.
Bernard J. O'Donnell: He did, Your Honor. And he argued strenuously to the jury to please do not consider this, because this is simply a First Amendment belief protected by the Constitution. And no--
Byron R. White: And I suppose he went on and argued, and furthermore, it isn't worth much.
Bernard J. O'Donnell: --No, sir, he didn't. He asked the jury to please consider that this is merely a belief protected by the First Amendment. No counselor, no defense counsel in our States should be put in that position, to have to plead to a jury to not punish his client because of beliefs protected by the First Amendment.
Antonin Scalia: Mr. O'Donnell, I hate to ask this because it... you know, if you give the wrong answer, this case isn't very important. But it just doesn't say he's a member of a group. It says... the stipulation was he's a member of a prison gang. Doesn't that have a connotation of a group of people that engage in unlawful activities, for starters? I mean, you don't refer to, you know, he's a member of a gang called the Kiwanis Club. [Laughter] Or a gang called the American Civil Liberties Union. He's a member of a prison gang. What does that suggest to you? It suggests a bunch of people that are--
Bernard J. O'Donnell: It is--
Antonin Scalia: --They are doing not nice things in the prison, I think.
Bernard J. O'Donnell: --It is... it is still an association. And those connotations, which just involve speculation as to activities where there's no proof of the illegal activities, or proof that he acted or carried out unlawful acts pursuant to membership in a gang, simply because of his association--
Antonin Scalia: This isn't a sufficiency of the evidence... this that the jury can't take it into account even if it is proven... that, that... you know, that he was a member of a prison gang.
Bernard J. O'Donnell: --Well--
Antonin Scalia: I'm not sure that I can't consider it a sign of a bad character, that you're a member of a prison gang, whatever they believe, whether it's a white Aryan gang or any other gang.
Bernard J. O'Donnell: --Your Honor, as the Court pointed out in Lanzetta v. New Jersey, some years ago... in fact, it was 1928... in that case, one of the elements of the offense was that the petitioner be a member of a gang, or a gangster; in fact, that's how the crime was defined. Some of the other elements were that he not have a job, that he associate with other people. But basically, the criteria used was the connotations behind the word gangster. And that was constitutionally impermissible.
Anthony M. Kennedy: Well, wasn't this breakout effected by members of the gang? I thought that the people that broke out were all members of this gang?
Bernard J. O'Donnell: I do not... I do not think that was clear. Even if they had been, unless it was... unless there was proof that it was one of the... that that was the reason for the gang or the beliefs were the reason which prompted the unlawful activity, the escape, it would still be inadmissible. I'd like to point out that the State did offer, as aggravating--
Anthony M. Kennedy: So your position is, is that if the gang breaks out of prison, in sentencing, the judge can't take into account that the... that the prison breakout was orchestrated by a gang?
Bernard J. O'Donnell: --If there was... if there was a conspiracy to break out, yes. But if he was--
Anthony M. Kennedy: Well, that's in this record, isn't it?
Bernard J. O'Donnell: --If I... if I may make the distinction... if there is a conspiracy to break out, yes. However, if the... if the evidence was only directed towards the gang being racist, that's not punishable. That he... that has nothing to do with it. That there was a conspiracy, or a solicitation, or a provocation--
John Paul Stevens: Mr. O'Donnell, I thought there was an acknowledgment by your opponent that the membership in this organization had nothing to do with the offense for which he was tried.
Bernard J. O'Donnell: --It did not whatsoever.
John Paul Stevens: And wasn't the evidence of Aryan Brotherhood membership excluded until the penalty phase?
Bernard J. O'Donnell: It was. And it was only admissible... it was only admitted for one purpose, so that the jury could argue that as an additional aggravating circumstance, that he's a member of this racist gang.
John Paul Stevens: And aren't there some gangs that are not necessarily invidious? How about a chain gang?
Bernard J. O'Donnell: If that were reflected to... if that reflected his criminal record, and certainly there are, perhaps, less prejudicial ways of proving it, that may be admissible. If the Court please, I would like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. O'Donnell.
Bernard J. O'Donnell: Thank you, Mr. Chief Justice.
William H. Rehnquist: Mr. Fairbanks, we'll hear from you.
Richard E. Fairbanks, Jr.: Thank you, Mr. Chief Justice, and may it please the Court: David Dawson was sentenced to death in a Delaware courtroom, because he broke out of prison, he broke into Madeline Kisner's home, he burglarized it, he robbed her, he tied her up, he strangled her, then he stabbed her 12 times, killing her. There's no question in this case that his membership in a prison gang, called... a racist prison gang called the Aryan Brotherhood is reflective of character. Dawson concedes it's reflective of character. There is no question--
Anthony M. Kennedy: Now the stipulation didn't show that this was a racist prison gang. It was very careful on that point. It said the California gang is racist. And the prosecutor... were you the... did you prosecute the case?
Richard E. Fairbanks, Jr.: --No, I did not.
Anthony M. Kennedy: Oh, well your prosecutor continued to argue that this was a racist gang. And that... that's not reflected in the stipulation.
Richard E. Fairbanks, Jr.: Well, what it says is is that the Aryan Brotherhood refers to a racist prison gang, a white racist prison gang which was founded in California. I think... and if the... there's no quarrel that these reflect David Dawson's beliefs. Because in closing argument, Mr. Swierzbinski, who defended Dawson, says yes, he's a racist. So that we're not here with the quarrel of whether or not these accurately reflect... whether this particular description of the Aryan Brotherhood was, in fact accurate, or whether it, in fact, reflected David Dawson's views. But when you look at all of this in context, you have to put in the context of the Delaware system, the Delaware death penalty system, which is a Gregg or Georgia-type system, that's announced by this... referred to in this Court in Gregg and Zant. And that is, that first the defendant is convicted of first-degree murder. Thereafter, the discretion of the jury is narrowed with the... with statutory aggravating circumstances. Finally, the jury is left to assess whether or not the penalty should be life imprisonment or death, based upon an individualized determination of David Dawson's characteristics and... character and propensities, and the circumstances of the offense.
Anthony M. Kennedy: Does the record show that any minority members were on the jury?
Richard E. Fairbanks, Jr.: Yes, it does.
Anthony M. Kennedy: And what does it show in that regard?
Richard E. Fairbanks, Jr.: It shows that there was one black juror. And what happened in this case... if I can sort of explain it... there was voir... voir dire of the entire jury panel, individual voir dire, in which the... in which the judge said, in effect, can you... there may be evidence in this case about membership in, or references to the Aryan Brotherhood, and described it briefly. Will this evidence prevent you from being fair? That question was answered negative... was said... four individuals who were selected for this jury said, I can't be fair with this evidence. They were excluded for cause. Two others, for a total of six, knew something about the case. But what they knew about the case was that David Dawson belonged to the Aryan Brotherhood. And they, similarly, were excluded, so that six members of the jury were excluded. Dawson had argued that you have to exclude this up front. You have to... his motion in limine to be dealt with up front, because consistent with his views, his racial stereotyping, he believed that blacks and Jews would be more on his side with regard to the conviction. And he wanted them on the jury. But if this evidence was going to be presented, he was going to exercise his preemptory challenges to exclude all blacks. And that's what he did. He ran out of preemptory challenges around juror number six or seven; and juror number eight, I believe it was, was the one black individual who he could not peremptorily challenge. So that there is just one black member of this jury. But when you look at what the... that final, discretionary stage, what a jury is supposed to do, the jury is not to be value or content neutral. The jury is to exercise moral judgment. And they are to exercise moral judgment based upon the... among other things, the character and propensities of the defendant.
John Paul Stevens: May I ask you, what does... what does the membership in the White Aryan Brotherhood tell us about his character?
Richard E. Fairbanks, Jr.: It tells us two things: one, a general sense of lawlessness, and two--
John Paul Stevens: Well, now how do you get that?
Richard E. Fairbanks, Jr.: --Because it's a prison gang. It's a racist prison gang.
John Paul Stevens: But racist prison gang... you think the word gang implies lawlessness, does it?
Richard E. Fairbanks, Jr.: Yes, and I think that is what the trial judge thought, and actually that's what the supreme--
John Paul Stevens: And is that the argument that the prosecutor made, that it implied lawlessness? Or did he just argue about the kind of views he had with respect to the different races?
Richard E. Fairbanks, Jr.: --No, what he argued goes to the second part of what the Aryan Brotherhood deals with. And that is his rejection of rehabilitation. David Dawson presented evidence in his case... or brought out evidence in the State's case and presented evidence in his case... of essentially aspects of rehabilitation. He said, look, in my years of prison, I have gone to AA, I belong to other treatment programs. These were signs and were admissible because they showed that he had tried to rehabilitate himself to bring him back into society. This evidence counters that. This evidence is that he rejects... that the real David Dawson is not the person that goes once a week or so to an AA meeting, but the real David Dawson who was 24 hours a day, in the full year, a member of the gang.
Sandra Day O'Connor: Well, Mr. Fairbanks, are you assuming that we take judicial notice of what the beliefs are of members of the Aryan Brotherhood chapter in Delaware? Are we supposed to just make certain assumptions here?
Richard E. Fairbanks, Jr.: No, I think that the--
Sandra Day O'Connor: Because the stipulation is so bare bones that I didn't find any evidence connecting the petitioner's membership in the brotherhood to lawlessness or a rejection of rehabilitation. I just... I didn't see that in the stipulation.
Richard E. Fairbanks, Jr.: --Well, the stipulation is something that Dawson agreed to, and it is subsumed within the notion of a white racist prison gang. And I really think that's--
Anthony M. Kennedy: Well, you keep saying that, but it's a California gang that's white racist. And he's a member of a Delaware gang with the same name. That's all it said.
Richard E. Fairbanks, Jr.: --Well, but I--
Anthony M. Kennedy: And the prosecutor, just as you're doing here, continues to argue that he's a racist. And the question is, what is the evidence of that in this case?
Richard E. Fairbanks, Jr.: --Well, he agrees that he is a racist. I mean his closing argument says yes, this is accurate. This accurately reflects my views.
Anthony M. Kennedy: Was his closing argument after the argument given by the State?
Richard E. Fairbanks, Jr.: Yes--
Anthony M. Kennedy: Thank you.
Richard E. Fairbanks, Jr.: --it was, it was sequential. There is... there is the prosecutor's argument, his closing argument, and then final rebuttal. But I think that... that the point really is is that we are not dealing here with a question of does this accurately reflect. Does the... does what we have said about him accurately reflect David Dawson? And there's no argument that it doesn't. I mean, he agrees that it does. So we're not here--
John Paul Stevens: Well, would it have been permissible to just have... you have the two first... to simply put in evidence that he was a white racist, period. He voted for... in a certain way in an upcoming election, for example.
Richard E. Fairbanks, Jr.: --Well, I'm not sure how you determine how he votes, given secrecy of the ballot.
John Paul Stevens: Well, say he stipulated that he was going to vote for this particular individual who's a white... alleged to be a white racist.
Richard E. Fairbanks, Jr.: I think--
John Paul Stevens: And he supports white racist causes, generally.
Richard E. Fairbanks, Jr.: --I think--
John Paul Stevens: Would that be sufficient to put in?
Richard E. Fairbanks, Jr.: --I think that what you have to look at is not Dawson's per se rule, which simply works on the syllogism of if he can attach a speech or association element, it's excluded. Rather, what you look at is what does it say about a... what characteristic does it say about him, and is that characteristic relevant?
John Paul Stevens: Well, but there are two parts to it. Let's... I'd like to separate... one is he stipulates that he was a member of a prison gang, without identifying it, that it was formed in response to other prison gangs. You... that, you say, would be relevant because it shows he's not capable of being rehabilitated.
Richard E. Fairbanks, Jr.: Yes.
John Paul Stevens: But then the second half of it, and the one that was emphasized by the prosecutor, that he stipulates that he is a member of a white racist group, a group that believes the white race is superior to all other races, and for political and other purposes he subscribes to those beliefs. Could that part separately be put in evidence in your view?
Richard E. Fairbanks, Jr.: I think if it speaks to a characteristic that is--
John Paul Stevens: Well, you know what it speaks to--
Richard E. Fairbanks, Jr.: --then it's relevant.
John Paul Stevens: --I've told you exactly what it is.
Richard E. Fairbanks, Jr.: Yes, and I think it does speak to a characteristic that is relevant to... to sentencing.
John Paul Stevens: So that it would be sufficient to just identify him as a white racist?
Richard E. Fairbanks, Jr.: He is... he is fundamentally at war with his society. And he rejects the values of the society. And I think that's--
John Paul Stevens: Well, some people... there are a lot of people, unfortunately, in this society who share those values.
Richard E. Fairbanks, Jr.: --That's right.
John Paul Stevens: And if they can all be... that can be a... say it's not a capital case, just say a sentencing guideline case. Your belief about the relative values of the races can be an aggravating circumstance that imposes a more severe penalty on you for a crime you commit under the statutory sentencing guidelines. That's your view?
Richard E. Fairbanks, Jr.: Yes, because it says something very specific about his character, his rejection of--
John Paul Stevens: Well, what does it say about his character?
Richard E. Fairbanks, Jr.: --I think it says... it says that he... is that he judges people not on the basis of who they are, but based on the basis of race. He is, in effect... racism is the ultimate dehumanization of individuals.
John Paul Stevens: You could also put in, for example, that he hates Catholics, period; or he hates a certain, certain religion. And--
Richard E. Fairbanks, Jr.: If he has... I think that religious or other prejudices, they are available, too. But that's not this case. What this case is--
John Paul Stevens: --Well, what's the difference? It's basically his views that are not shared by the majority that make him susceptible to more severe penalty, if I understand your position.
Richard E. Fairbanks, Jr.: --But that's not... well... it is part of his character that is not acceptable.
David H. Souter: Well, isn't it equally true, then, that you could put in evidence that he's a socialist? Socialists are at war with the... with the property structure of the United States. It's a minority position, and you could say this man is a socialist. He's not a Republican or a Democrat.
Richard E. Fairbanks, Jr.: I'm not so sure that I go that far.
David H. Souter: Why not?
Richard E. Fairbanks, Jr.: Because I'm not sure that--
David H. Souter: Be at war with society... aren't socialists at war with the property structure of the United States?
Richard E. Fairbanks, Jr.: --I don't think in the same... in the same sense that racism is.
William H. Rehnquist: Well, now-- --Well, what if he... what if he either... do you want to put a... because you want to put in, in the days when the Cold War... that the man is a Communist? He believes in the overthrow, the ultimate overthrow of the capitalist system. And this is... this is a simple murder case. There are no political elements to it. Can that come in?
Richard E. Fairbanks, Jr.: I would think that if it speaks to a relevant criteria in sentencing--
William H. Rehnquist: Well, that's what I've told you, I've told you what the thing is.
Richard E. Fairbanks, Jr.: --And I think that the violent overthrow of his society speaks to a relevant sentencing trait. It is much like... like remorse, or the lack of remorse, which he would also reject in his analysis.
Antonin Scalia: Well-- --A violent overthrow is at least a crime. Racial attitudes, you're... as far as I know, it's not unlawful, short of taking some unlawful action, to hate Catholics or to hate... to hate any group, right?
Richard E. Fairbanks, Jr.: That's true, as--
Antonin Scalia: But that makes you a bad guy, and therefore your sentence can be increased?
Richard E. Fairbanks, Jr.: --But here, it wasn't just the beliefs in a vacuum. It was associated with a prison gang. And I think that this case is... is looked at in two ways. One--
Antonin Scalia: I thought we were on a line of hypothetical questioning whether you could introduce the fact that the person was a racist, independent of... let's not retreat back to the fact that he's in a gang. That's a different issue. We're just talking about the fact that the person is a racist. You think that alone should be able to be introduced, right?
Richard E. Fairbanks, Jr.: --I think that is a matter which is not, per se, excluded. That at that point, the judge must weigh and balance probative value versus risk of prejudice. And the judge may very well, and probably will, in most of those instances, exclude it after that weighing process. What we are saying is that you... you get to that weighing process, that you don't have a per se rule.
Antonin Scalia: What about if he's sexist? I suppose that could be introduced as well, if a person is sexist, or has a lot of--
Richard E. Fairbanks, Jr.: I'm not sure how broad sexist is defined.
Antonin Scalia: --That's not quite as bad as being a racist, is that?
Richard E. Fairbanks, Jr.: What I'm saying is, is that you don't have the judges picking and choosing between what is good and bad character before--
Antonin Scalia: That's what I worry about. That's exactly what I worry about. And once you say racism is okay, you know, what isn't?
Richard E. Fairbanks, Jr.: --No, what I'm saying is there is not a per se... a per se rule which excludes all of this. Because what he says, he wants to wrap himself in the First Amendment, but he doesn't really want to wrap himself in the First Amendment. The gown doesn't really fit. What he's... because the premise of the First Amendment is not you can't consider it against you. It is neutrality. The premise of the First Amendment is that Government needs to be neutral. And here, the structure of the legislative scheme is itself neutral. The judge, in itself, in analyzing this is neutral. They are basing it on characteristics. It is simply... the statute, itself talks about character and propensity of the defendant. It can be admitted in aggravation or mitigation. The judge does not decide whether it is good character or bad character. He simply says, is it relevant and... to an important peneological concern, something that's relevant and important to sentencing.
Anthony M. Kennedy: Now you're saying it's not relevant to character? I thought that was your whole proposition.
Richard E. Fairbanks, Jr.: No, I'm saying that it is relevant to character. But he... but he then goes and says, what does that character trait tell us about this individual? One can conceive of all sorts of character traits that really don't have anything to do with sentencing. Here, rejection of rehabilitation, which was now it was argued, it's how the Delaware supreme court viewed this evidence, is relevant to sentencing. And it, in fact--
John Paul Stevens: Mr. Fairbanks, let me just be sure I have not misunderstood your position on one point. Do you agree with your opponent that it would be impermissible to make membership in the Aryan Brotherhood a statutory aggravating circumstance?
Richard E. Fairbanks, Jr.: --Yes.
John Paul Stevens: Now why would it be impermissible?
Richard E. Fairbanks, Jr.: Because at that point, Government is deciding what groups are good and what groups are bad. The legislature is making that judgment. They could--
John Paul Stevens: In other words, it's a judgment a jury can make, but the legislature cannot make.
Richard E. Fairbanks, Jr.: --Because the jury... because the--
John Paul Stevens: Then why do you draw the... they're both speaking for the Government.
Richard E. Fairbanks, Jr.: --Well, because at the... at the latter stage, they are looking at it not just as, as an aggravating circumstance. They're looking at it in the full context of all the variety of considerations that the jury has to consider.
John Paul Stevens: Well, what if the legislature looks at it in the same full context, and they just say this is always an aggravating circumstance, because it always illustrates bad character?
Richard E. Fairbanks, Jr.: Because it... I suppose, because at that point he is, he is made eligible for death because of that--
John Paul Stevens: Well, say it isn't death. Say it's the sentencing guidelines, that you have a... for robbery, that you get an additional point, or whatever you do, to get into a higher, more severe poten... eligibility for a more severe sentence, membership in the... just as Justice Scalia said. This is not necessarily just a death case. Membership in the Aryan Brotherhood should be worth three points, to move you from category A to category B. Could the legislature do that?
Richard E. Fairbanks, Jr.: --We think not.
John Paul Stevens: You think not? And why not?
Richard E. Fairbanks, Jr.: Because we think that on that point, the legislature is making value judgments. And that unless you can show and be--
John Paul Stevens: But why can the jury make a value judgment that's impermissible for the elected representatives of the whole people?
Richard E. Fairbanks, Jr.: --Because that's the jury function in this instance. The jury... what this Court has said the jury is to do, is to make... is to make a moral judgment as to his fate based upon the consideration of the... of his characteristics.
Byron R. White: Yeah, but the jury doesn't elicit this information. The State presents it. The State offers and argues that it's a quite a relevant circumstance to determine whether this fellow's worth living or not.
Richard E. Fairbanks, Jr.: That's right. But the State does not actually do the labeling. The jury does the labeling. And the jury does the labeling in the full range of circumstances about the defendant.
Anthony M. Kennedy: Suppose the judge says, in my moral judgment, members of the Aryan League are, by reason of their beliefs, are more deserving of the death penalty than people that are not members. And that's the dispositive point in my decision. What result?
Richard E. Fairbanks, Jr.: That is... that is similar to what the sentencing judge did in Barclay.
Anthony M. Kennedy: What... and you would permit that?
Richard E. Fairbanks, Jr.: I think that that... membership in a... in a racist group does speak to a relevant character trait, and the judge can make... take that into consideration when he considers all the aggravating and mitigating circumstances.
Anthony M. Kennedy: Again, I don't see how that's any different from the hypothetical Justice Stevens put to you where the legislature tells the judges what to do. You like individual discretion rather than concrete rules?
Richard E. Fairbanks, Jr.: Well, because what this Court has said in the context of death penalty... penalty hearings, is that what that jury is supposed to do is to render a moral judgment based upon the character and propensities of the defendant and the circumstances of the offense. You can't be content neutral, or value neutral, and make moral judgments. So that they have to be free, and they are asked to be free every day to make moral judgments.
William H. Rehnquist: Your position is if... if the defendant at the sentencing hearing can show that he went to dancing class in prison, and that's a mitigating thing, you should be able to show something like this, maybe some of the jurors will think it's... it's a point against him?
Richard E. Fairbanks, Jr.: Yes, I think... and that's... and that ultimately is what his... his final position, as articulated in his reply brief is. And that is, that if he presents membership, associational beliefs in mitigation, the State can present associational beliefs in aggravation.
Byron R. White: So I take it, under some circumstances, you would say the State would be entitled to put in evidence that although he belongs to the Boy Scouts, he's an atheist?
Richard E. Fairbanks, Jr.: Justice White, I think that... I'm not sure what... what, from the... from the State's point of view, what membership in the Boy Scouts says about somebody, and nor am I sure what atheism says about somebody.
Byron R. White: Well, supposing the defendant doesn't put in any of this evidence, but the State thinks that... the State thinks that in this... in this particular county, evidence that he's a Catholic would be very unpopular with the jury.
Richard E. Fairbanks, Jr.: And that is material that the Delaware supreme court has made clear would not be admissible. Because what that is--
Byron R. White: Because no reasonable juror could think that he was a bad person for that reason?
Richard E. Fairbanks, Jr.: --Because what it is doing is interjecting an arbitrary factor to appeal to prejudice or bias, and that there is a limitation to this. What--
Antonin Scalia: What if he tries to introduce evidence that he's a good, God-fearing man, goes to church every Sunday... you pick your denomination, I don't care. Can he get that in?
Richard E. Fairbanks, Jr.: --This Court has held that that is... that that is relevant--
Antonin Scalia: So the jury can say, gee, this is a good, God-fearing man, so we'll let him live.
Richard E. Fairbanks, Jr.: --That's correct. And all this is the counter to that sort of evidence.
Antonin Scalia: But you say you couldn't produce evidence that he's not a good God-fearing man, that he's an atheist?
Richard E. Fairbanks, Jr.: Well, because it does not speak to a... to a factor that is... that is relevant--
Antonin Scalia: I don't see why the one does and the other doesn't. And what about the fellow who's not a good God-fearing man? I mean he says, gee, if I were only a good God-fearing man, I could get this evidence in and maybe I wouldn't get the death penalty. Aren't you punishing because of his beliefs? You'd be punishing him, in effect, because he's not a good God-fearing man. He cannot honestly say I go to church every Sunday.
Richard E. Fairbanks, Jr.: --Well, I think that is what occurs, and may very well occur in death penalty cases up to now... that is, is that the jury has before them, the characteristics that the defendant puts in which are not related to conduct, which are First Amendment material. I mean, he may say--
Antonin Scalia: So if you're going to keep out the bad stuff, you have to keep out all the good stuff too, to be... because the bad people who don't have it are being prejudiced by the fact that they don't have it. And therefore, you've got to keep it all out.
Richard E. Fairbanks, Jr.: --Yes, if this is a First Amendment claim, which is what Dawson says that it is, yes. Because the First Amendment is not designed to say you can consider it all good, or you can consider it all bad. It is neutrality. If the jury is to be neutral, you can't consider any of it. But if the jury, in this instance, is... is the Government, then the jury must be neutral. But if the jury is neutral, they are not making moral judgments based upon the character of this defendant. In fact, in this case, he says in his reply brief that if he can present evidence in aggravation... in mitigation that are associational beliefs, he's always conceded... although it's the first time in his reply brief... that the State can do the same in... to counter that evidence. Well, as a matter of fact, what the record says, is that immediately before they left, they adjourned to enter the stipulation that he finally entered into, the prosecutor offered just such an arrangement. On Joint Appendix page 51, at the bottom of that page, the prosecutor said, look. You can't be offering associational beliefs unconnected to... to conduct and mitigation, and bar us from doing it... doing the counter... doing the same thing. And then he further goes on to say that, sure, if you want to enter in this stipulation not to present that, that evidence, we'll do the same.
Byron R. White: And your position is, wholly aside from that stipulation, you should be able to introduce this evidence as relevant to character?
Richard E. Fairbanks, Jr.: Yes, I think that is correct.
Byron R. White: Did the State really offer to prove that the... that this prison gang was the kind of a gang described in Barclay or in, what is it, Abel? Abel... that it's... the Aryan Brotherhood is a secret prison gang that required its members always to deny the existence of the organization, to commit perjury, theft, and murder? Did the State offer to characterize the Aryan Brotherhood, and was that excluded?
Richard E. Fairbanks, Jr.: No, what... what happened, what the sequencing of events were, is that the prosecutor was... began with a proffer. And he proposed, then to move on to present voir dire testimony of the State's witnesses, so the judge could then undertake a balancing approach, which is what he said is... he... the judge said, he's got a two-step process.
Byron R. White: And what did he say the witnesses were going to testify to?
Richard E. Fairbanks, Jr.: That the... there were two main, and central characteristics, but that the individual from the Bureau of Federal Prisons was going to come in, and he was going to be our expert.
Byron R. White: And he was going to say what the Aryan Brotherhood was all about?
Richard E. Fairbanks, Jr.: Yes, and what he said was, is they have two main characteristics. The two main goals of the Aryan Brotherhood are... and this is at page, Joint Appendix page 33... and he says their two, main goals are, one, to control the drugs in prison, and two, violent escape attempts.
Byron R. White: Do what?
Richard E. Fairbanks, Jr.: Violent escape attempts.
Byron R. White: Well, I suppose that if that evidence had gotten in... maybe I misunderstood your colleague on the other side that he thought that maybe if that had been admitted, it would have... it should be upheld, that kind of evidence. Do you understand that?
Richard E. Fairbanks, Jr.: It's... he's sometimes hard to pin down. But I think that that's one of the things that he has said, yes. And I think that... that what happened was, is that the parties--
Byron R. White: So the State really got in trouble by the exclusion of the testimony?
Richard E. Fairbanks, Jr.: --That's right. I mean what he's saying is is he's trying to have it both ways. He wants a sterile presentation of the evidence. And then he wants to attack us for having agreed to a sterile presentation of the evidence.
William H. Rehnquist: But the State lost something by that sterile presentation, too. It lost any testimony connecting this particular membership to the sort of things that a lot of people would feel were quite relevant to a sentencing determination.
Richard E. Fairbanks, Jr.: Absolutely. That what the prosecutor also proffered that the State would show was a letter signed by Dawson--
William H. Rehnquist: But what... what difference does it make what the State proffered? The judge didn't turn down their proffer. They had... he was a most patient judge. He heard him for page after page on this question. Finally, they came up with this stipulation.
Richard E. Fairbanks, Jr.: --That's right. And now, having accepted that stipulation, he cries foul.
William H. Rehnquist: Having accepted the stipulation are crying foul-- [Laughter]
Richard E. Fairbanks, Jr.: Chief Justice, what I'm crying foul is, is that... is being attacked for the stipulation.
John Paul Stevens: Yes, but he accepted the stipulation as a substitute for keeping all this evidence out. And there's a pretty good argument for keeping all this evidence out. He's just a member of the gang. That's all that you've proved so far, not that he'd participated in any of these activities.
Richard E. Fairbanks, Jr.: Well, the proffer actually does go farther than that. I mean, because the proffer said that one of the things they seized from his... from his cell was a letter signed by... by Dawson, saying that Aryan Brothers must take flight. Now, that is at Joint Appendix page 36.
John Paul Stevens: Aryan Brothers must take flight. And what does that prove?
Richard E. Fairbanks, Jr.: That is... that connects to the second of the two principal goals of the Aryan Brotherhood that Mr. Aaron was going to testify to.
John Paul Stevens: Because neither of those goals had anything to do with white supremacy, did they? The two... none that he was going to testify, and white supremacy is the key to the prosecutor's closing argument.
Richard E. Fairbanks, Jr.: No, I don't think that is the key to the prosecutor's closing argument. The key to the prosecutor's closing argument is comparison between what Dawson says about his conduct in prison, and his association with his family, and what he really is. And he almost invariably connected--
John Paul Stevens: But his conduct in prison, and what he really is, why don't you put in evidence of what he did in prison, instead of what organization he belonged to?
Richard E. Fairbanks, Jr.: --Because the organization... just like his joining AA, his going to AA meetings... I mean he has a right to say that, not because he's proven that he has actually been rehabilitated, but that he goes to those meetings as offer... as an offer to show that he is making attempts at rehabilitation. This is the counter of that evidence. This is what the Delaware supreme court understood that this evidence was designed to deal with. And he does not really argue that that is improper. He wants to say that simply because the evidence is... attaches to First Amendment that it cannot be used against him, but it can be used for him. And that, we say, is not the premise of the First Amendment. The First Amendment is not the evidentiary rule that he wishes it to be. As this Court said in Barclay and in Abel, both cases in which associations were properly used... in Barclay to sentence, in Abel to convict... that the associations, if they are relevant to a... to a matter that's properly before the jury are not excluded simply because they are associations or beliefs. He says that's wrong. He says that what... that there... his syllogism is very simple, that if he can identify something as an association or belief, it's excluded as aggravation. And we say that is not what the First Amendment is designed to deal with, and that's not what this Court has said that the jury is supposed to do when they consider death cases. Or, in fact, any other case, any sentencing case. Because it... just to give you one--
John Paul Stevens: That's not the syllogism I understood him to mean... he said if you can't make it a statutory aggravating circumstance, how in the world can you make it a nonstatutory aggravating circumstance. That's the syllogism I understand him to be advancing.
Richard E. Fairbanks, Jr.: --Now, well, what I think he's saying is if you cannot punish it as... if you can't criminalize it you can't... or regulate against it, is why you can't consider it when you talk about his character. And we simply say that you can. It's much like remorse or the lack of remorse. One can demonstrate lack of remorse not simply by not testifying, but actively by saying something, or by making a gesture. Clearly, that is pure speech. That is something which talks about what's inside of you. That is relevant to--
John Paul Stevens: And membership in this organization proves lack of remorse. That's the argument?
Richard E. Fairbanks, Jr.: --No, I am saying, and what the Delaware supreme court said is two things. It shows he is a bad... has bad character... he's a bad character, lawlessness; and two, that it's a rejection of rehabilitation. Both of those factors are relevant, much as the lack of remorse.
William H. Rehnquist: Thank you, Mr. O'Donnell. Mr. Fairbanks, you have four minutes remaining.
Bernard J. O'Donnell: Thank you, Mr. Chief Justice. First, if I may, allow me to respond to the State's points concerning this being rebuttal evidence. This is not rebuttal evidence which we're talking about. The State suggests that it counters what the defendant proffered, what the petitioner proffered. The State used a very inept example. The pointed out that the defendant asked the court to consider, asked the jury to consider as an example his alcoholism. Now the State suggests that somehow evidence concerning his racism countered or rebutted that mitigating evidence. If Delaware or Mr. Fairbanks knows of a rational relationship between alcoholism and racism, or any other ism in this country, they should share that finding with the Surgeon General, as well as with Delaware juries.
Byron R. White: As I understand you on your direct argument that you thought that if there was... if the judge... if there was evidence offered about the... what this group was all about, that it really... it really was a... a criminal enterprise, and did incite escapes, would that evidence be admissible?
Bernard J. O'Donnell: Well, unless he adopted and advocated the escapes. And I might point out that--
Byron R. White: Well, now, say that again?
Bernard J. O'Donnell: --Unless he advocated, or if part of it was that he was engaged in a conspiracy to commit the escapes--
Byron R. White: All the... all that was offered was that he's a member of this group, and this group believes and is actively engaged in the... in criminal activities. Now, is that evidence admissible? Is his membership in that kind of a group--
Bernard J. O'Donnell: --No, no it is not. Because there's no evidence that he intended to accomplish those ends. The State, I may point out, introduced evidence in this case that he escaped.
Byron R. White: --So you have to really... you have to really show that he participated in these criminal activities?
Bernard J. O'Donnell: Your Honor, it was shown in this case that he escaped. What his white racism had to do with it has nothing to do with--
Byron R. White: Well, just answer my question. That's all I needed to... all you need to do. You say that in order to get the evidence in, you would have to show that he participated in these criminal activities?
Bernard J. O'Donnell: --Yes.
Byron R. White: Um-hum.
Anthony M. Kennedy: Mr. O'Donnell, you introduced evidence of group membership, right... AA... now, I guess if you say that a person can't be sentenced on the basis of his membership, I guess you would logically have to say he shouldn't be sentenced because of his nonmembership either. But doesn't that happen every time somebody who doesn't belong to AA is sentenced? I mean your client can come in and say I'm a member of AA. And this other fellow is being punished because he's a nonmember of AA.
Bernard J. O'Donnell: No, it does not, Justice Kennedy.
Anthony M. Kennedy: I mean what I'm suggesting is that there's just no end. Once you say you can't use membership, there's no end to every... to what has to be kept out of all our sentencing determinations.
Bernard J. O'Donnell: It is not just because belonging to AA is not a belief, and the judge is not exhorting him to inflict punishment because he does not belong to AA.
Anthony M. Kennedy: It's not a belief? Certainly it's a belief. It's a belief against... against drinking, and self-discipline... all those are beliefs, aren't they?
Bernard J. O'Donnell: They are beliefs, yes. However, they're not punishment. Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. O'Donnell. The case is submitted.