Earl Warren: You may continue, Mr. Shepherd.
Edmund E. Shepherd: I would like Mr. Chief Justice to answer your last question.
Earl Warren: Thank you.
Edmund E. Shepherd: And at the same time to reanswer a question from Associate Justice Brennan. Michigan has no record of legislative history for being possibly to tell just why that amendment was enacted. My guess would be and it's merely a guess or a suggestion that that additional phrase or clause was put in there because of the increase in juvenile delinquency of which we are all aware. Now if I might digress in the record just to give you an illustration of that, the other day just before I let -- I had occasioned to visit the State Police Post. And there for the first time I observed polygraph test of a young man 19 years of age, accused of statutory rape on a 13-year old girl. And I watched that and I observed his answers and he didn't confess, I understand he did live. But the horrible part of it was that at the same time six others were awaiting a similar test for statutory rape on the same 13-year old girl. So it maybe that acts of that kind induce the legislature to amend the statute. Now, coming back to my answer to your question, Mr. Justice Brennan --
Earl Warren: Well before you answer that one, Mr. Shepherd, I -- I wondered if -- if in passing this amendment, your legislature thought that perhaps it had to put another definition. It created another standard let's say or another type of obscenity in order to be able to convict people.
Edmund E. Shepherd: That might be true. Now, logically I passed to reanswering this other question. I do not think that under the -- the statute and in each particular case, you have to prove as a matter of fact that some particular youth, a boy or a man was led to commit some act of deprivation. I think that the -- the case, as a matter of fact, the issue of fact would be the matter contained in the book with the matter contained in the book tends to do these things. So that as in this case, the Recorder's Court judge resolved the issue of fact but finding as I view this record that taking the book as a whole and having read of it, it is obscene within this definition.
William J. Brennan, Jr.: I understand from that that the State's position that there was a finding on the book as a whole.
Edmund E. Shepherd: Yes, Your Honor. That is definitely not the expensive maybe tedious. Just for a few minutes, I want to take you to this record and show you just why I -- I make that contention. At the outset, a motion was filed to -- on -- on the face of the statute. The motion is filed to dismiss. And on page 16 of the record there are some discussion about that in which the Recorder's judge reserves his decision on that motion. And he didn't pass upon it until the end of the trial. Now, he says among other things in regard to that. Now I would like first to meet on -- I would like first to meet with counsel because after all, some of these passages are delicate. Some of these passages, I don't mind telling you, so far as I am only on page 123, referring to the book, and there are over 500 pages. And many continues I was pleased that the book was handed to me before the case commenced, which clearly indicates that at that time, when the motion was under consideration, he intended to read the whole book. Now, the Court will turn to page 23, you will find that at that point in the case, during the receiving of testimony, these excerpts were introduced in evidence. And what the Court said there clearly indicates that he did not intend to judge the book alone on those excerpts, because he says that the Court takes this position at this time. I have not read the complete book. I intend to. Now whether I base my decision on the complete book afterwards or the excerpts contained in there will be a matter of my opinion, or my opinion there. So, he passes thereby and he introduces the excerpts solely for the purpose of identification, not that he may judge it but that he -- that they may, as he says, save a lot of time marking at the book and the page references, and so forth. Now on page 29, again he reserves the decision on the motion and clearly indicates that he is going to read this whole book and he says that he is just a slow reader, reads books very slowly or your excerpts very slowly or your briefs very slowly. I do not -- I do not know that I have not completed reading anything but the brief and the motion. I have read part of the book and I've read part of these excerpts. So he's progressing, maybe somewhat slowly. Now on page 32, we come to the point where they are about to introduce expert testimony on the literary value of the book and whether or not this or rather by passages which earned the scrutiny here or essential to the theme. And he clearly indicates that that is the purpose of the -- of admitting that testimony. Now we turn to page 58 and 59 of the record. Again on expert testimony and showing just how the Court's mind is working down at the bottom of the page for the whole report. Without objecting any further, my ruling would be the same on both issues. It would be perhaps the Court and the literary issue and go be of help to the Court and the interpretation of the statute. I am going to permit people who claim to know what it's all about to testify in this case.That would apply to both sides. Now I want to point out just one thing here in passing. Judge Ricker (ph) admitted in evidence and received in evidence testimony adduced from experts on literary values. Experts who have read this entire book and who testified what if these episodes were essential to the main object or theme, he would not permit testimony as to whether in the opinion of any witness, the passages were obscene or the book was obscene because as he held right and wrong, (Inaudible) usurped is judicial function in passing on those questions. Now, on page 77 --
Earl Warren: You say, he would not let the experts testify as to whether in their opinion the book itself was obscene.
Edmund E. Shepherd: Whether it was -- yes. Yes, Your Honor. He -- he would let them testify as to whether or not these passages were essential to the main theme of the book, this conflict between the spiritual and physical.
Earl Warren: Yes.
Edmund E. Shepherd: Now --
Speaker: But he wouldn't let them testify even as to the obscenity of particular passage.
Edmund E. Shepherd: No, no Your Honor. He -- he avoided that most carefully as I read this record.
William J. Brennan, Jr.: Well, would he let them testify whether the excerpts would or would not corrupt?
Edmund E. Shepherd: No, I don't believe so. It may -- one or two questions from you slipped in and had been answered but take it by and large he carefully excluded any expert testimony on the issue which he himself is to determine.
William J. Brennan, Jr.: Well the reason I asked that is I noticed on page 32, he made a statement that I think they will be beneficial, while he said, and on the other hand I would like to hear the opinions. I think they will be beneficial and helpful to the Court. The opinions both as to the literary value and as to whether or not it tends to corrupt morals. In fact there was no such evidence.
Edmund E. Shepherd: He said that, yes, but I think -- I can't point to pages but his -- his general approach or philosophy was if that is a question after all for him to -- to determine.
William J. Brennan, Jr.: How did they qualify first to be an expert in this field?
Edmund E. Shepherd: You mean as to literary value. There -- there were a number of professors and book reviewers on each side who -- who testified that for the -- for the dependants, the respondent testified that in their opinion it was a beautifully written book.
Hugo L. Black: I understand that. What I was --
Edmund E. Shepherd: Yes.
Hugo L. Black: -- interested in is, how would you qualify an expert in this field? What -- what's the experience do they have to have different from other people --
Edmund E. Shepherd: Well, as to --
Hugo L. Black: -- to be an expert in censorship.
Edmund E. Shepherd: Well, not in censorship.
Hugo L. Black: Why are they determining whether books should be sensitive?
Edmund E. Shepherd: No. I don't think that was the point, Your Honor. I don't think -- I don't think that was the issue. I don't think that was the point on which they testified.
Hugo L. Black: So what was the -- what did they qualify -- what was he an expert on?
Edmund E. Shepherd: He was an expert -- they were experts on -- on books and on literary values and the -- the gist of the testimony of witnesses for the defendant was this.
Hugo L. Black: What -- I understand, what were they? Professors of literature or what --
Edmund E. Shepherd: Professors of literature in colleges and --
Hugo L. Black: Anything else to that?
Edmund E. Shepherd: That they had -- that they had reviewed different books, and that sort of thing.
Hugo L. Black: That all the experts were professors of literature?
Edmund E. Shepherd: Well, not all of them. We produced for instance Doctor Adler of the Theological College in New York. We produced --
Hugo L. Black: What theological college?
Edmund E. Shepherd: Jewish Theological College of New York. They teach (Inaudible). And we also -- we had a Bishop of an African church and we had a Father, a priest in the Catholic faith, who said they had read books, they had made the practice of criticism of books and that they were versed in literary values
Hugo L. Black: Thank you. I just want to know --
Edmund E. Shepherd: You see, that -- that --
Hugo L. Black: -- (Voice Overlap) of educations, (Voice Overlap).
Edmund E. Shepherd: -- that was -- that Your Honor please was the only issue of fact in this case as to the testimony developed. Now on page 77, it shows, I think, that the Court was then studying this book very carefully at the bottom of the page. Now just to clarify this, the conflict continues throughout the entire book. It's a conflict between the physical and the spiritual. And finally the spiritual wins out. It said, it is questioning a witness here, he shows interest. Yes, Your Honor, I am trying to distinguish which between spiritual passion and sexual passion. The Court throughout the book it starts and varies in degrees I get it and then spiritual wins out and that's his evident -- quite evidently, he is taking a great interest in it and has written the book. Now, I could refer through any number of page citations here but I turn to page 171 of the transcript of record in which the Court says however, the courts will permit it as I see it the testimony as to whether the material contained in there is of such literary value. As to justify these particular passages, there might be immoral, nude, lascivious, and obscene. So I am going to ask you again (Inaudible), if you feel that some of the materials in there is justified by the literary value of the book, can you answer that? So it shows that each following true on that -- on that carrier. It clearly indicates that he has read the book and is judging it, then just that way. There is another question which he propounds to witness on page 179 and I will continue on page 180 where they confront. You think that the literary value of the book would have been impaired at all by removing or changing some of those parts in the book. That, well particularly in the very description of the -- let's call it sensual rather than sexual act. Do you think the literary value would have been destroyed if some of those were changed? And so currently -- idea of a literary value, I'd say no.
Tom C. Clark: What page is that on?
Edmund E. Shepherd: That's on page 179, if Your Honor please. Then on page 180 just a little short quotation down at the bottom, it's a -- they've examined Father (Inaudible), I'm right in that pronunciation. The Court says, “Now wait, I have read the book. I would be terribly shocked if Father (Inaudible) had answered that any other way than he had." And again on page 188, I hope I'm not too tedious, I think it's at the utmost importance. Another witness on the stand, the Court says on the matter of obscenity nor salacious literature. He has as I said received disqualifications and it goes to the degree rather than the admissibility. So the Court will ask you, do you think that the passages could be eliminated, so rephrased without effect -- without affecting the literary value of the book. And the colloquy goes on between the Court and the witness. Our counsel has already gone over this opinion which the Court read and I think he followed -- to be followed both (Inaudible) and drawn on the modern rule but at any rate it's quite clear to me that he did after reading this book comes the conclusion that those passages, obscene passages, were not essential. They're overstressed, they're overemphasized, and that therefore, the book as a whole was clearly obscene.
Speaker: I wonder really whether what you've been through Mr. Solicitor General, throws any real light on what the opinion means because the threshold of all these, he specifically says that he's going to decide on one basis or the other excerpts or the book as a whole in his opinion. From where you began -- began there on page 23 before he did as he undoubtedly did read the whole book, he says now whether I base my decision on the complete book afterwards or the excerpts contained in there will be a matter for my opinion there. And you don't really get any light on anything until you reach the opinion, do you?
Edmund E. Shepherd: Well am I rather doubted to you get a great deal of light on statutory construction for reading the opinion. I think that what the judge was doing here in the sole function when she performed was to resolve the issue of fact. Are these particular passages obscene? Yes, they are. Now if they're obscene, you integrate them to the whole of the book, does the make the book obscene? Does the book contain obscene passages applying the modern rule, and that would be my view.
Felix Frankfurter: Mr. Shepherd, may I ask you this question?
Edmund E. Shepherd: Yes, sir.
Felix Frankfurter: There was an application for leave to appeal from the Recorder's Court --
Edmund E. Shepherd: Yes, sir.
Felix Frankfurter: -- to your Supreme Court --
Edmund E. Shepherd: That's right.
Felix Frankfurter: -- to which you've realized directly as I understand it. That --
Edmund E. Shepherd: It's discretionary.
Felix Frankfurter: That condition by the defendants to secure a review from the Supreme Court was consented by the people.
Edmund E. Shepherd: By the prosecutor.
Felix Frankfurter: By the prosecutor. The people agree, a I read their memorandum, that because the issues involved in this occasion are of great public interest and because it appears with further clarification in the language of Section so and so and amended (Inaudible) application for leave to appeal would be granted. Despite this consented application, your Supreme Court did deny the application and did not leave that the case called for further clarification. Now, what I want to know from you is this. As I take it, our first inquiries, what is the scope of the statute? What -- what is the authoritative meaning of this statute which we must take from your Supreme Court? What I want to know from you as the first one, from the statute (Inaudible) What I want to know from you, Mr. Shepherd is, to what decisions -- what decisions other than what the Recorder here brought, what decision would your Supreme Court will you refer me to enable me to ascertain what I must take as the settled and controlling medium of the statute on the basis on which I must decide whether it does or doesn't depend to the due process clause of the Fourteenth Amendment.
Edmund E. Shepherd: That particularly statute is under observation to my knowledge (Voice Overlap) --
Earl Warren: Mr. Shepherd, would you mind the Court -- would you mind talking closer --
Edmund E. Shepherd: Yes, sir.
Earl Warren: -- to the microphone so --
Edmund E. Shepherd: Yes, sir.
Earl Warren: -- so all can hear?
Edmund E. Shepherd: Yes.
Earl Warren: It's all right. You don't need to follow that, just to the end.
Edmund E. Shepherd: The only case that --
Felix Frankfurter: So all you can say that that statute has been under observation.
Edmund E. Shepherd: Yes.
Felix Frankfurter: Well --
Edmund E. Shepherd: Well, I mean that has never been construed by our Supreme Court.
Felix Frankfurter: It has not.
Edmund E. Shepherd: Never, except when they held on the Little's case that the --
Felix Frankfurter: The question was --
Edmund E. Shepherd: -- a defendant was entitled to a jury trial.
Felix Frankfurter: Well that, I should think that case was easy because that specifically says, the Little case (Inaudible) --
Edmund E. Shepherd: Yes, that's -- yes.
Felix Frankfurter: -- (Voice Overlap) was convicted.
Edmund E. Shepherd: It don't. That's right.
Felix Frankfurter: So that I don't have to -- to the point of laziness to welcome the answer. I don't have to read any precedence, read court opinions on this subject, is that it.
Edmund E. Shepherd: Not on this particular subject of obscenity, no Your Honor. Statutes went on --
Felix Frankfurter: What -- what I'm trying to find out what the scope is except as applied in this case to what the Recorder said, is that it?
Edmund E. Shepherd: I don't think the Recorder said an awful lot of them and how that language should be construed, he don't call it, he -- he simply decided the question on the -- of fact as I view.
Felix Frankfurter: Well then, then is my -- then that's your answer to my question that I might put on this (Inaudible) a question away because that's the way I have to reach the result. It's my job then to read this book, as yet I'm fully innocent of its content. I have to read this book and take myself while they upheld this is within the statute, therefore, the statute covers a thing like this and I must decide a thing like this if that's made of a crime whether that may or may not commit a crime by Michigan, is that it? Can I get no guidance from your Supreme Court opinions?
Edmund E. Shepherd: No guidance from our Supreme Courts Your Honor, please.
Felix Frankfurter: I have to get it all out of my own head and my knowledge of reading anything.
Edmund E. Shepherd: I am sure --
Felix Frankfurter: Find out things of what this is.
Edmund E. Shepherd: I'm sure your capable of doing that, Your Honor, Mr. Frankfurter.
Felix Frankfurter: But I -- but I can't make (Inaudible)
Edmund E. Shepherd: Wasn't it -- wasn't it Mr. Justice Jackson who said that you do not sit as a super bar of censors, is that what you have in mind?
Felix Frankfurter: Well, would that enable me -- can I just close that (Inaudible) --
Edmund E. Shepherd: Well, I think -- I think that these -- that these passages sir, excerpts if you do want to call them that, are so foul and so filthy, maybe it's my puritanical ancestors coming out here and my very dear Victorian aunt who chatted me once for referring to legs into the limbs. But I think this thing --
Felix Frankfurter: Fully on that, (Inaudible)
Edmund E. Shepherd: I -- I hope so. I hope so.
Speaker: What is your interpretation of containing, you are going to discuss them.
Edmund E. Shepherd: Well, I turn to a couple of cases, I believe from Ohio, Your Honor please. They are cited in my Brother's brief. We have a situation, an argument or a statute provides that -- it reads not wholly obscene but contained certain description. It's not wholly obscene but contained -- or you might have a law which says containing any obscene merit. You might have a different problem there.
Speaker: At this time, you go as far as that.
Edmund E. Shepherd: Oh, no. Any book which has salacious descriptions or obscene descriptions, then it certainly contains it.
Speaker: Well, you read the statute differently because you are assigned to it.
Edmund E. Shepherd: I do, yes Your Honor.
Speaker: And you (Voice Overlap) --
Edmund E. Shepherd: Yes, Your Honor.
Speaker: And we're not bound by what this Court said because of your Recorder's Court.
Edmund E. Shepherd: Well, I have the utmost respect for the Recorder's Court. It's a Court -- it's a Court of Record. It has exclusive jurisdiction over all crimes committed within the City of Detroit. It has a court reporter and all that sort of thing.
Speaker: But that's the only --
Edmund E. Shepherd: But --
Speaker: -- person we have from a Michigan court --
Edmund E. Shepherd: Pardon?
Speaker: Is that the only person we have from a Michigan Court on the exact issues.
Edmund E. Shepherd: Well, maybe I don't make myself clear. I think the only question and that that Court decided was one effect and I think in deciding or resolving that issue, he used modern rule. He may have decided that these excerpts were obscene, obscene description. But I think he also held that integrating, the myriad integrating into the book that the book itself was obscene.
Speaker: If your interpretation of the statute then it -- that if he merely found that the particular passage was obscene, that doesn't violate the statute.
Edmund E. Shepherd: I don't understand that.
Speaker: If your interpretation of the statute as I take it that if he merely follows the passage per se and of itself was obscene that's not enough to violate the statute.
Edmund E. Shepherd: No, I think (Voice Overlap) --
Speaker: You think, they read the context and the book as a whole, personally.
Edmund E. Shepherd: Personally, I think that you should judge the book as a whole or you want to follow (Voice Overlap) --
Speaker: And if we can read this statute that way in spite of what the District Judge said.
Edmund E. Shepherd: That's the way I read it.
Felix Frankfurter: What you are saying is in spite in view of the light, in view of the light (Inaudible)? And what you're saying is that we have to consider this as a simple unqualified statute to make into a sentence to tell obscene literature seriously. And further that there is to be incorporated the rules that in determining our representative, the publication in its entire as a whole, you can't tear out a page or two (Inaudible).
Edmund E. Shepherd: That's right.
Felix Frankfurter: Is that your -- that that's what --
Edmund E. Shepherd: I -- I agree with Judge Hand on that. I do.
Felix Frankfurter: Well --
Edmund E. Shepherd: (Inaudible)
Felix Frankfurter: I understood. That's -- that is under a different statute. All I'm saying is that -- you're saying that exactly to me although the Michigan Supreme Court hasn't got much of the authoritative light, is that right?
Edmund E. Shepherd: Certainly.
William J. Brennan, Jr.: But why -- why do you have to reach that at all? Did this -- did this judge decide on the book as a whole?
Edmund E. Shepherd: I think so, as I read this entire record.
William J. Brennan, Jr.: If -- if he did decide on it as a whole, you don't have to take up the problem of --
Edmund E. Shepherd: You don't take the marginal cases.
William J. Brennan, Jr.: The marginal cases.
Edmund E. Shepherd: Marginal cases or maybe the case later on or --
William J. Brennan, Jr.: Maybe that one obscene word in the book but not ban the whole book --
Edmund E. Shepherd: No.
William J. Brennan, Jr.: -- under the statute.
Edmund E. Shepherd: That's right.
William J. Brennan, Jr.: We don't have -- we don't reach that?
Edmund E. Shepherd: That's right.
Hugo L. Black: Suppose the incidence, it covers 40 pages in the 500-page book.
Edmund E. Shepherd: Pardon Your Honor?
Hugo L. Black: Suppose the incidence then instead to cover 40 pages on a 500-page book and your Recorder decides that the book as a whole is immoral, obscene, and so forth. What about that? Does that settle it?
Edmund E. Shepherd: I think that settles the issue of faith, of course they didn't go -- they can go to a jury.
Hugo L. Black: Suppose the incidence is only five pages and he decides that it's -- that as a whole.
Edmund E. Shepherd: Well, this is more than five pages. You're reaching a marginal case.
Hugo L. Black: I don't know. I don't know --
Edmund E. Shepherd: We might run into trouble with the case of that kind but --
Hugo L. Black: What about Shakespeare's Venus and Adonis? Where does it stand -- where does it stand --
Edmund E. Shepherd: Well --
Hugo L. Black: Where does it stand in this?
Edmund E. Shepherd: With the Rape of Lucrece, I think if you put the Rape of Lucrece in a paper covered book and sold it through drugstore outlets, it might be considered salacious or obscene, maybe.
Hugo L. Black: And the man who had it -- any man, any bookseller who had in its -- in his possession would be guilty on the old statute of violating that law.
Edmund E. Shepherd: If it were sold through those channels or to children as notoriously congregate.
Felix Frankfurter: You have to add one more relevance, Mr. Shepherd, and the jury must still find it.
Edmund E. Shepherd: That's right. The conscience of the community speaking through its -- through the jury. Thank you for your attention.
Speaker: Would it -- would it be proper to say that I think it has been said in some of the cases that one must find that the dominant purpose of the writer was obscenity?
Edmund E. Shepherd: I think that's the -- that's the basis of the whole book rule, is it not dominant?
Speaker: But the whole book might be obscene but it might be a work in literature such as innocent adolescence. Certainly, it wasn't in a five-cent copy or a 10-cent copy would be probably wholly obscene.
Edmund E. Shepherd: It may. It's quite a problem. We submit this --
Earl Warren: Mr. Robbins, do you have anything more? Very well.