Roger Arnebergh: -- but because the buyer can read the book but will be recognized among the legislative intents was that of protecting not only the buyer, but also society from the evil of the flow of obscene matters. The principle that knowledge is not required is again reaffirmed in the significant case, United States versus Balint and I'd like to read a bit from that if I might because of the appropriateness of the -- that case involved the unlawful selling of opium. Now the lower court had sustained the demurrer because the complaint did not charge specific knowledge. And the -- this Court reversed the lower court and stated that knowledge was an element in this type of case, it was a question of legislative intent and that the legislative intent had been clearly demonstrated that knowledge was not required, then knowledge was not necessary.
Speaker: Have you had a case through research to see how many statutes there are of this kind, obscenity statutes that don't require scienter?
Roger Arnebergh: Yes Mr. Justice. There's a great many. It's a very broad field, your Pure Food and Drug --
Speaker: No, no. I mean in the Obscenity Bill.
Roger Arnebergh: Oh, pardon me. That I could not answer. I know there are others in addition to ours, but I don't know how many there are. I would not be in the position to state that. The matter was discussed at the recent convention of NIMLO which the National Institute of Municipal Law Officers which just took place last week and I might state this was the major problem with which we were all concerned. And I know that there are the cities that had such an ordinance, it was discovered there, but I couldn't say specifically how many do, or how many do not. As an indication of the broad field to which this thing -- this has been applied, this principle that you do not need to have specific knowledge is the case of Williams versus North Carolina. That involved a -- the validity of a divorce and a bigamy prosecution and in that case, the Court stated “A man's faith often depends as for instance in the enforcement of the Sherman law on far greater risks that he will estimate rightly. That is, as the jury subsequently estimates it to some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment as here, he may incur the punishment of death.”
Potter Stewart: Now that would be -- that language will be quite relevant if here -- they were showing that Mr. Smith knew the contents of the book and then went ahead and took his chances on a prosecution after knowing it, but is that relevant to the man who doesn't know what's inside the covers of the book?
Roger Arnebergh: I think it is relevant in this respect that it shows that absent – it shows that there is one step along the way. It shows that guilty knowledge is not required. Now, in answer to your specific question, you have a directly analogous situation in connection with your Pure Food and Drug Act and things of that nature and in the case of Dotterweich for example 320 U.S. 277, it was specifically held there that an officer of the corporation who had been convicted, that conviction could be sustained although he had no personal knowledge of the matter at all. In that case, this Court stated “The now familiar type of legislation whereby penalty served as effective means of regulation such legislation dispenses with the conventional requirement of criminal conduct, awareness of wrong doing. In the instance of the larger good, it puts the burden of acting as hazard upon a person otherwise innocent, but standing in a responsible relationship to the buyer or to the public danger, pardon me.” Now, my contention is -- our contention is that here, you have a person who stands in a responsible relationship to a public danger that of the indiscriminate distribution of obscenity. And the same principle is of course then applied to short wake and to numerous other matters such as billing and safety, zoning and things of that nature. The principle that guilty knowledge is not a necessary element in a -- to hold a person criminally liable for a violation of law, has been sustained in cases involving constitutional rights in addition to those of the Fourteen Amendment which of course protected, in this case. For example, the first right mentioned in the First Amendment to the Constitution is that of a freedom of religion. But yet in the Reynolds case, here a conviction of bigamy was sustained despite the fact that the defense was that he thought he was doing right, and it was one of the principles of his religion and with respect to the Second Amendment. The Second Amendment provides that the person's right to carry and to keep and bear arms shall not be infringed. Yet, we have laws with respect to carrying concealed weapons or even possession of certain types of weapons such as machine guns. He may have no knowledge of the law, but he's guilty nevertheless.
Charles E. Whittaker: But it is the (Inaudible) knowledge of the law or knowledge of the content that made (Inaudible)
Roger Arnebergh: Well, it is a question of him having knowledge that the thing that he sold was in violation of the law. In other words, he knows that he sold a book. He had a book and he knows that he sold the book. Now, the question that comes up, do we have the right to require him to know what he is selling, or can he sell anything that he wants indiscriminately on the basis he didn't know what it was. That is the question. How far can the city or can the state or have the public go in protecting itself from this sort of activity. In other words --
Charles E. Whittaker: As far as I understand, does it require a knowledge of the charge of the --
Roger Arnebergh: The State law does, our law does not.
Charles E. Whittaker: But the ordinance does not.
Roger Arnebergh: The ordinance does not. In other words, this presents the question referring to -- to food and drug as the closest analogy. Is it more important for society to protect the well-being, of the physical well-being of its members or the mental well-being of its members or as Bishop Fulton Sheen recently expressed it, “Why should we not keep poison away from minds as we keep it away from stomachs?” On considering this question it's important to recognize that probably 50% or more of our mental -- our hospitals are now occupied by cases from mental disturbances to some kind or another. And believe me it's far easier to pump poison from the stomach than poison from a mind. Obscenity may affect the hearts and minds in a way never to be undone. Unfortunately, by the case of Brown versus Board of Education of Topeka, it has now been clearly established that that which affects the hearts and minds of its people is just as much a matter of concern to the State as that which affects their bodies. Now, of course the problem presented in this case far transcends the importance of the evil that that particular book might do. The defendant here as in all similar cases, contends that he doesn't know what he sells. That he doesn't read the books that he handles, that his business is so big that he couldn't possibly read all of the books that he sells. Is bigness a defense? If we had to prove that the defendant knew that the book that he sold was obscene then he would be setting the standard, not the community, not the average person. To be the law that bigness is a defense, that he doesn't have to read, he doesn't -- if he hasn't read it. He doesn't know what it is. He's not liable? Then the bigger the dealer, the less responsible that you would have, while a small dealer, could probably be reasonably required to have read the three or four books that he might handle. If this be the -- if this be the defense, then the very same defense would be available to every large dealer regardless of how vile, how contaminated, how filthy the material that he would handle. I can not believe that it is the law that bigness, mere bigness is a defense because it prohibits -- so -- his business is so large that the man can't know what he's doing. He has to have the responsibility. These same arguments were made at the beginning of the Pure Food and Drug Act and it was said that nobody would dare to handle Pure Food but we still have -- we still have foods stores. The only difference is that now, the food that they sell is pure. Now, free speech has been very much discussed in this case, but does an ordinance which makes it illegal for a bookseller to possess or sell an obscene book really involve free speech? The quick answer of course is that obscenity is not within the area of constitutionally protected speech of the press, but the importance of the overall problem is such that I don't think we should stop here. The commercial exploitation of the morbid and shameful craving for materials with prurient effect requires that we go beyond this. And in studying the various cases dealing with free speech and the difference -- different opinions, I've tried awfully hard to try to reconcile what is the underlying cause of it all. The nebulous principle of law that would reconcile them all them together because I'm sure all the decisions, all the different opinions are striving for the same thing that we're striving for, that of protecting free speech without licensing obscenity. And I'm unwilling to accept the premise that this cannot be done, that there is necessarily any inherent conflict between our objectives of preserving free speech, and preventing commercial exploitation of obscenity. So I really put -- so I went back and did a lot of reviewing even since our brief was written, we are then so close to the case that we probably didn't look at the cause for the trees and this -- and in this connection --
Speaker: Excuse Mr. Arnebergh.
Roger Arnebergh: Yes.
Speaker: Do you have any (Inaudible)
Roger Arnebergh: Yes sir.
Speaker: And they were ordinances (Inaudible)
Roger Arnebergh: The ordinance specifies the places at which possession is illegal, and of course we are here concerned with a situation where a man possessed it in a place where the books were sold. Now, if you read all of the sections of the ordinance, the purpose of it is, to keep it out of possession of places where either at the -- with the commercially exploited as here, or where it could serve as an immediate inducement to an obscene act that the book might stimulate.
William J. Brennan, Jr.: (Inaudible) copy of this book.
Roger Arnebergh: If it were --
William J. Brennan, Jr.: (Inaudible)
Roger Arnebergh: If it were to be construed as shall I say, technically or closely as that, I could state this, as a city attorney, we have never construed in that manner. We -- I've always construed -- as a matter of fact --
William J. Brennan, Jr.: Exceptions?
Roger Arnebergh: There's no exception. It would be a matter of -- a matter of shall I say discretion in -- and I'm sure that the courts would read into it as they have in many other laws, reasonableness there. But anyway, we are here concerned with -- we are hereby concerned with subsection two, if I recall the correct subsection, and which has to do with having it in a place wherein -- in its possession, in a place where books are sold or selling it. And if the other subsections are bad, that is a matter that isn't vital to this case but as I stated the enforcement policy has never been to do other than try to obtain its objectives.
Earl Warren: But I suppose if scienter is required under this section, it wouldn't be required under the other?
Roger Arnebergh: No. But it might well be that you -- that of course, it's merely the possession of an obscene work might -- might not be reasonable. I don't know. I'm not prepared to argue that at this time because I haven't analyzed all of the cases involving that and it is not involved in this because in this particular subsection, it's a commercial exploitation and that I think is a key to the whole problem. In this connection, it's interesting to briefly review the -- shall I say the cases that are the landmarks on the path of free speech. From the very beginning, the cases have involved the speech of the defendant who was attempting to personally organize or personally carry a banner or personally picket. For example, Herndon versus Lowry, that involved this personal speech of the defendant who was attempting to organize. Watkins versus United States involved the right of the defendant to, with respect to his taking an oath. Sweezy versus New Hampshire involved the right of the defendant to personally refuse to answer questions. Hague versus Committee for Industrial Welfare involved the right to have an injunction to prohibit the plaintiff -- the plaintiff in the injunction case Hague, the injunction to restrain him from exercising his personal rights to distribute handbills setting forth his personal views and Helvering versus Leonard, involved in anti-picketing ordinance. Defendant was personally picketing and he was arrested. In Carlson versus State of California involved an ordinance prohibiting display of banners by pickets and the defendant was personally picketing and personally carrying a banner. In Bridges versus California, a contempt case, involved a letter or telegram that Bridges had personally sent. And the Times Mirror, the other defendant, involved an editorial personally put in their paper. Now, there's too a great distinction between the exercise of free speech and engaging in commercial activities. Schneider versus Irvington involved the right of the defendant to personally distribute handbills in the street.
William J. Brennan, Jr.: And that must be (Inaudible) the defendant to engage commercially in business (Inaudible) and that it was necessary to come (Inaudible) does not (Inaudible) either to someone not (Inaudible)
Roger Arnebergh: It has never been so construed and I don't think it would be reasonable to construe in that manner. Now, what we're concerned with here and this is the crux of the whole thing, we are concerned as is -- I think every city in the country with the controlling the commercial exploitation of obscenity.
William J. Brennan, Jr.: (Inaudible)
Roger Arnebergh: If the ordinance should be redrafted, that's one thing but the point of it much --
William J. Brennan, Jr.: (Inaudible)
Roger Arnebergh: Well, we think that it does by our construction of it, we think that it does, but it -- but it is possible to read so it does not.
William J. Brennan, Jr.: Do you have any case representing you with this (Inaudible)
Roger Arnebergh: We do not have any State Court decision where we have -- or any -- we have never prosecuted to the best of my knowledge. And I've been in the -- I was in the Criminal Division since 1941 and I've been city attorney since 1953. To the best of our knowledge, we have never prosecuted under Section 2 anybody other than the owner or possibly the clerk who was actually selling in what was actual sale made and that is the way that we would administer it. Now, if it's too broad in its terms that of course is relatively a minor matter. This particular defendant in this particular case isn't our major problem. Our major problem is getting some decision should we say or an opinion that can enable us to fully protect free speech and at the same time stop the commercial exploitation of obscenity. That's what we're -- that's the reason that we're here. That's the thing we're concerned about and of course, there is a clear distinction between commercial exploitation. As I started to say about this case in New York, they prohibited the distribution of handbills and the Court stated that they couldn't do this but they clearly recognized the distinction stating, “We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulations as the ordinance may require.” It was the prohibiting of passing out handbills setting forth a person's personal views that was unconstitutional and there're been many distinctions between the commercial activity and this free speech. That's stressed in -- now in the Valentine case but -- and these various other cases, Packer Corporation versus Utah, Fifth Avenue Coach Company where they prohibited display advertising on the side of buses and all of its stores. From this -- from these cases, it would be seen that it is the personal right of defendant to personally exercise his free speech that is protected by the First Amendment. Further it is clear that free speech is distinguishable from commercial activity and this is the key to the whole solution, as our problem is not with those who wish to personally express their ideas, their views or their opinions. There be --
Potter Stewart: In a state free speech is distinguishable from commercial activities, sometimes it may involve a non-commercial activity and all kinds (Inaudible) commercial activities. Newspapers are published among other purposes to make money.
Roger Arnebergh: Well of course, I -- I will defer that if I may, but I -- with respect to newspapers, basically of course you have free press and free speech and they have the benefit of both. But with respect to free speech, that which is commercially exploited as in this case copyrighted, you have an entirely different situation resulting. I have the right to go on the street and express my views, but whereas in this case, the defendant was selling a book that he contended he'd never had read. He certainly wasn't expressing any opinions or views or beliefs. He wasn't even enough interested in it to read the book. All he was interested in was a commercial activity of selling a book. Now, how can his free speech be involved?
Potter Stewart: Does a free speech in -- involve arguably at least something more than the right of the person to speak. Doesn't involve -- doesn't it involve the right of other people hear it?
Roger Arnebergh: I suppose free speech without the right to be heard would be meaningless and -- and consequently, I would say if there would have any free speech involved here that was violated, it was not the defendant because it wasn't what he said that we are here to engage with. It was with somebody else it said. Now if anybody's free speech was involved, it was the author's, but the answer to that is this. The author had copyrighted the book. He had sold the copyright to the publisher and the two, between copyright and free speech are totally inimical. In other words, when you copyright something, you deprive the public of the right to it, unless they pay you a benefit. Freedom of speech is the right to express an idea, an opinion, a belief. You can't copyright any of those. You can't copyright an idea, an opinion or a belief.
Hugo L. Black: You mean it doesn't include the right to sell a book?
Roger Arnebergh: Oh, that's protected by the Fourteenth Amendment.
Hugo L. Black: Well, is it correct or incorrect that it is not protected by --
Roger Arnebergh: In my opinion and I could be wrong, but I'm trying to reconcile the problem we're confronted here, I think that when you copyright something, you have changed its nature from that of free speech to property. The very function of a copyright is to acquire a property right in what you've said, as distinguished from the material book itself and where you --
Hugo L. Black: But the First Amendment is trying this argument from the idea of the writings in a book.
Roger Arnebergh: The --
Hugo L. Black: The sale a book via the right to bring a publication and printing a book by the Government.
Roger Arnebergh: That's true, but they weren't copyrighted.
Hugo L. Black: Do you think that the fact that the book is copyrighted, takes away the right of people to read it under the First Amendment?
Roger Arnebergh: My point is this. I think that first of all in this case, we were dealing with the free speech of the defendant. That he is the one who's charged and his free speech was not in anyway violated because he wouldn't even read what he was selling. To him, he was selling a piece of property. Now that as to whether or not we were violating anybody else's free speech, we'd get into collateral question, “Did we violate the author's free speech?” And the answer to that in my opinion is no because the book was copyrighted and then the author had sold the copyright to the publisher and the publisher held the copyright. And -- and furthermore, under the law as frequently expressed by this and other courts when you copyright something you acquire a property right in it, and you are then dealing with property.
Hugo L. Black: But it's still a book.
Roger Arnebergh: It's still a book.
Hugo L. Black: But if it's privilege, it's still a book even though it's covered outside. I understand your argument that it is not privileged because it's on print.
Roger Arnebergh: Now on that --
Hugo L. Black: I can't quite follow. You're on the idea that somehow because the book's copyrighted -- to display as something is to be disseminated that the public can reach it if it wants to and if the public can secure by purchase or otherwise, does it seem fit? I don't think --
Roger Arnebergh: I wanted this -- to the very effect. That there is this great -- there is a distinct distinction between the fact that free speech does not include obscenity. That is one separate point. Now I'm trying to -- and my reason I'm bringing this other as a separate in collateral justification or basis where this is that I feel that in -- if we will recognize the basic principles of free speech, the right to express an opinion, idea or a belief and we will recognize the distinction between that which is property and that which is free speech we can reconcile all the differences in opinions that we have here because we will in no way infringe upon a man's right to do that thing which was protected and we have -- he has a fully protected constitutional right if he wants to -- to make it property, to change his speech to property and sell it for commercial exploitation. If he doesn't want to commercially exploit, we have no problem.
Hugo L. Black: If he made a political speech and charged people for hearing and they wouldn't hearing it.
Roger Arnebergh: He hasn't copyrighted that. He hasn't made that property.
Hugo L. Black: But suppose he does copyright his speech?
Roger Arnebergh: If he copyrights --
Hugo L. Black: Your argument there that if a man makes some political speech and copyrights it he's not protected by the freedom of the First Amendment or they maybe affected by the Fourteenth Amendment?
Roger Arnebergh: If he has the right to repeat that and he repeats it then it sure must be his free speech involved, but this man wasn't free of anything. He was just selling a book that he'd never even read and didn't know. However, to answer your question head on, I personally feel after a study of all these cases and I recognize that it's -- it's a further exploration of it, but I've done it in an effort to try to reconcile all of our problems here so we can get some --
Hugo L. Black: Pretty good care.
Roger Arnebergh: It certainly is. It's one -- it's well worth the -- the spending considerable time which I've endeavored to do and --
Earl Warren: How about religious pamphlets that are copyrighted? Could they be proscribed without interfering with the freedom of speech in religion?
Roger Arnebergh: If they are copyrighted and then reduced to property, I would say that the same thing would undoubtedly apply.
Earl Warren: They could be proscribed?
Roger Arnebergh: Only -- well, without interfering with the First Amendment, you still have the Fourteenth Amendment. I want to emphasize that he has the constitutionally protected right in either case. And the -- and the difference is this, that under the Fourteenth Amendment, that of due process and not taking property from somebody without due process, the ownership of property including the ownership of the copyright piece of property involves the right to use it for gain -- to use it gainfully and that of course involves the right to sell it. The difference being that that case the State has, or shall I say a somewhat different situation, we then, are not quite as -- we can do that then should I say which is reasonably required in the public interest. We can like for example let's say by analogy to his own in-law where you -- a man owns his property. He has the right to use that property, but we can only restrict the use to that which is reasonably required for the public benefit.
Hugo L. Black: For the copyrights of a book proscribe all books that take the democratic side of the adoption or the public side, but he had this book that is copyrighted, discussing apart, would the -- that book be protected by --
Roger Arnebergh: Well, certainly because there was no -- there could be no reasonable basis under the Fourteenth Amendment why we could prohibit a man from selling that piece of property.
Hugo L. Black: Or you get back to where there's --
Roger Arnebergh: Anymore --
Hugo L. Black: -- I've seen it -- I've seen it. Do you not?
Roger Arnebergh: Well, I think it's a little bit broader than that. That's the point. I think that that would give a little bit broader application to the power of cities and states to cope with their particular localized problems just as we have with zoning. We have certain particular problems that we have to cope with locally, but we have to be reasonable in our application. Applying your end -- in your -- your situation or your hypothetical question to a zoning situation, obviously we couldn't prohibit anybody from leasing, renting or selling property to any member of one party. You see, there is an adequate protection here and it would solve our problem and it would solve the problem that we're here confronted with. We're only here confronted with the commercial exploitation of this sort of thing and --
Hugo L. Black: By exploitation of books, can you claim that because they are obscene they could not be -- that you have a right --
Roger Arnebergh: We --
Hugo L. Black: -- to buy it.
Roger Arnebergh: Well, I think under the Albert's case we have -- we have already decided on just straight obscenity but I'm talking about probably some of these problems we've got into, questions of what is obscene and there's difference of opinion here, there and elsewhere. I think that if we will apply the standard which I think should be properly applied, giving recognition to the sovereignty of States and the sovereignty of cities under charter a home rule and so forth, that we have the Fourteenth Amendment rather than the First Amendment there and consequently, we -- they can shall we say adopt such standards as are reasonably necessary for the sale of property. Now if it's -- if it's with respect to somebody expressing, and again I want to emphasize this, if they're exercising their free speech, if they're talking about what they believe or they're in a street corner and they're expressing their views or they're in a public park, or handing out the pamphlets or carrying a banner or picketing, these things aren't in anyway interfered with. The only thing of it is, is when a man reduces it to a piece of property which he does by virtue with the very provisions of the copyright laws as construed by this and every other court, when he does this, then he had by voluntarily, by his own act, not by your act or my act but by his voluntarily act, he has said, “I am more interested in making money than I am in expressing my views.”
William O. Douglas: But if these have not been copyrighted this would have to reversed (Inaudible)
Roger Arnebergh: Now, if this or that'd been copyrighted, it would stand on the basis of this obscenity not being within the area of constitutionally protected free speech and free press. So in this case, it would not have to be reversed at all. Possibly, I --
Hugo L. Black: But your argument then finally boils down to this make it right, I've never heard it before that a copyrighted book can be regulated more strictly than one which is not copyrighted.
Roger Arnebergh: That is precisely my point. And the reason for it is, that these people who were trying to make money out of filth, they're only interested in making money. They're not interested in expressing ideas, opinions, or beliefs.
Charles E. Whittaker: Why isn't there as much property in the hands of a bookseller than not copyrighted as them copyrighted?
Roger Arnebergh: It is and he has the full protection of the Fourteenth Amendment when he sells that too. The only thing I was stating, if -- when it's copyrighted you have by that nature changed it completely from free speech to property, and as property the bookseller of course, it's his property. He has the right to sell it. If it can be sold without unnecessarily -- I mean, let me, let me turn that around to express it more clearly. The state can only restrict the sale of that book if it is reasonably necessary to do so in the public interest which is a somewhat broad field of regulation than free speech. And consequently we can't arbitrarily deprive a bookseller selling his property or any other property whether it's copyrighted or not. If it's copyrighted, he still has its full protection of the Fourteenth Amendment.
Earl Warren: What if it's a -- will the interest of the public be the same whether a person disseminated the filth for the purpose of money or for lust?
Roger Arnebergh: That wouldn't be true, but the problem is not there because the -- we have no problem with people. I mean, it isn't a national problem like this commercial exploitation that we're concerned about. It is this, this desire to -- as you so ably expressed it in -- in the Albert's case -- that commercial exploitation.
Earl Warren: Do you have the same, the same things in this ordinance for instance the possession of it in any toilet or restroom open to the public, now that -- whether that is for lustful purposes --
Roger Arnebergh: That -- that --
Earl Warren: -- rather than commercial?
Roger Arnebergh: That is there. That's right. That different a section of it and that's what I endeavor to indicate in answering the previous question. If that was because in this particular place that it gave rise to shall we say the current present danger of it being a stimulation to unlawful acts.
Charles E. Whittaker: And you might see a distinction in a book in one store written by himself over one purchased from another and kept for sale?
Roger Arnebergh: I would say this. That certainly the defendant's personal free speech is involved if what he is passing on is that which is his speech.
Charles E. Whittaker: The (Inaudible) here is that the book is not right.
Roger Arnebergh: Yes, and -- and then assuming now that he had not reduced that to property by copyrighting it which was his option. He has the election. He can either have it be free speech or he can have via property right. And if he has not copyrighted it is obviously his free speech and he is fully protected by the First and the Fourteenth Amendment.
Charles E. Whittaker: I feel as to why one who goes out on the market to a bookseller and buys a group books, are they deprived of property right whether they are copyrighted or not and there's much in the ones as it is in the other, isn't that right?
Roger Arnebergh: Oh, absolutely. I failed to make myself clear. The bookseller has an absolute property right in these books and he's fully protected by the Fourteenth Amendment whether they're copyrighted or not. But if they are copyrighted, they are property, not speech, not freedom of speech. Consequently, they're deemed property, he then has the protection of the Fourteenth Amendment surely and we cannot deprive him of the right to sell that unless we can show that to do so it is reasonably required for the public welfare.
William O. Douglas: Because you've overlooked the argument and a long the line of our decisions apparently that the First Amendment is incorporated at least in part in the Fourteenth.
Roger Arnebergh: No your -- I have it -- I have it in your --
William O. Douglas: And we're not talking about the Fourteenth -- the Fourteenth of course is the only one applicable here in California, but through the Fourteenth you've reached the First.
Roger Arnebergh: Yes, I recognize that full well Justice Douglas, but the point is this that this Court has never decided to the best of my ability to research the question as to whether or not free speech is involved when there is a copyright and the author has by his personal election, decided to change that which he said from the expression of an idea, an opinion, or a belief and decided to change to a property right in which he is given by law of a monopoly and the exclusive right to determine how many times if it all, it will be repeated.
Potter Stewart: How about a case like Burstyn against Wilson, copyrighting of movies in effect?
Roger Arnebergh: Certainly, there's property right there.
Potter Stewart: And the -- what -- what I see --
Roger Arnebergh: But I don't believe that's --
Potter Stewart: Because I think what you're overlooking is, among other things is that Fourteenth Amendment protects liberty as well as property.
Roger Arnebergh: I'm fully cognizant of that, but when I'm -- I do not believe that this Court has ever been asked to determine the kind of question that I am now pulling and I have to say but that I discussed it at NIMLO and I think it was unique to all the attorneys there, maybe it's completely out if I didn't so. I do not see where it falls down.
Earl Warren: Mr. Arnebergh in newspapers daily have a great many articles that are copyrighted. Do they lose their protection of freedom of speech so far those articles are concerned?
Roger Arnebergh: Well, dissemination of news is of course -- news is of something that can't be copyrighted.
Earl Warren: But you -- you made the distinction. You said they have two rights. They have the right of freedom for the press and they have also the right of freedom of speech. Now if that's divisible, do they lose their right of freedom of speech so far as the newspaper is concerned as to their copyrighted articles or are they on a different -- some different basis?
Roger Arnebergh: I would say that as for a copyright and it either is the law or isn't the law and -- and if it is the law that when you copyright, it becomes property then as to the copyrighted articles they have property and that that is so is the fact that anybody can be sued for plagiarizing what the newspaper or anyone of these copyrighted columnists, that's property. That's not a free speech, but if I hear a man expressing an opinion or a view, I can go next door and express that opinion or view. The purpose of expression and an opinion or a view I believe is to try to get other people to accept it and yet here if I accept this column and then repeat it, I can be sued. Isn't that a clear indication that he by his voluntarily act has changed the character and the nature of what he has done from that of the right of free speech to that of property?
Earl Warren: Do you think Congress could pass a law to that effect?
Roger Arnebergh: No, Congress could not a pass a law depriving us of freedom of speech, but this man has elected to do this. He has his free speech. I have property. I have rights.
Earl Warren: But you say there is no more issue of free speech if he wants copyrights?
Roger Arnebergh: That's right.
Earl Warren: Well, then Congress could do it, because it's' no longer free speech in your judgment.
Roger Arnebergh: Well, I misunderstood your question Mr. Chief Justice. My point is that the Congress could not deprive a man of free speech, but Congress can say, You have the right to exercise free speech or you have the right to reduce it to property and they couldn't take his right from him, but he had by his own voluntary act, he elected to say I am more interested in money than I am in expressing views and that --
Hugo L. Black: Now, it's tested and it's one in private homes.
Roger Arnebergh: That's right.
Hugo L. Black: And what you were saying was no (Inaudible) going I think there is the idea that in existence it cannot utilized consistently with free speech and free press.
Roger Arnebergh: No, I don't say that. I state this. I state that if you decide to engage in a commercial activity, you do not necessarily have the full protection that you have if you are a crusader or if you're designed to express a view, opinion or belief. It's totally unnecessary.
Hugo L. Black: But this country has chosen to leave to sale, ownership and so forth with transaction in the sales of books and in the sales of other things. But do you not or am I wrong in thinking that if you make this with pay -- if you say if it's a copyright, changes a book where it's nothing but property, it's still a book. It still has its ideas. It still has whatever impression here, whatever impression could be drawn. While it has been given certain property protection under the law, it does -- it does not if I made a filling a book with ideas to which the people are entitled to receive under the First Amendment.
Roger Arnebergh: Well, I go so far as to say that I have the right to express a view or not a view. If I'll have a view, an opinion or a belief I have the right to express it or not to express it.
Hugo L. Black: You also have the right to receive it, do you not, from other people even if they have to buy a book?
Roger Arnebergh: That's right. I only have the right though, in the event they choose to give me the benefit. Free speech is for the purpose of giving to the world freely an idea, or a belief, or opinion.
Hugo L. Black: They don't turn that book lose into the world. Each one has a copyright. They've turned it lose for the ideas it has, whatever they are.
Roger Arnebergh: Well, that's -- that's where we come to -- where I feel differently.
Hugo L. Black: And copyright doesn't deprive it of its ideas, does it?
Roger Arnebergh: A -- or the -- I want to get back again -- the person who has the idea has the right to express them. He doesn't have to express the idea. No law can make him express it. If we need to know, a man can't take an oath or is not required to take an oath. He can't be required. Consequently, if I have an idea, I have the right to express the idea or I have the right to say, “I'll make money off the idea.” And if I elect to say, “I will make that idea property, not free speech” it's my election. If I want to make it an idea I can make it an idea. Now the fact that I make it property does not mean that there's any less an idea there that's true.
Hugo L. Black: It does -- it doesn't make it at any rate mass, like a mass of goods in the store does it, and lose its quality as a conveyor of ideas.
Roger Arnebergh: Well as I stated --
William O. Douglas: And who has the part to call it if you're selling religious literature as to the extent any of alleged exercise as far as the religious right (Inaudible)
Roger Arnebergh: And not -- not the sale of it. It's one -- one of the person's rights. Now I -- I'm not familiar with much -- much shall I say religious literature that has been copyrighted. Most of the people that I know were only too --
William O. Douglas: I'm not -- we're not talking about copyright. This is just where they were selling religious tracts.
Roger Arnebergh: Then they have an absolute right to do it because it hasn't been reduced to property.
William O. Douglas: Well they were selling it in the sense of getting money for it.
Roger Arnebergh: But I would as well, but they're --
William O. Douglas: They would sell it as ordinary property.
Roger Arnebergh: Well that -- that --
William O. Douglas: And since the argument was made in that case up and it came to what you're arguing here and we've rejected them in both religious cases.
Roger Arnebergh: Well -- well I -- I apparently haven't made my full thoughts clear. My thought is this that as to this particular defendant in this particular case, his free speech was not violated because he testified that he didn't know what he was selling, he was merely selling a book, he had so many books, he had so -- and shows and so forth that he couldn't possibly read them. So he was just selling.
Hugo L. Black: Was it not his right to freedom of the press and to be a circulating medium for the press?
Roger Arnebergh: The freedom of the press as I understand it is basically a prior restraint. In other words these taxes or these cases for example where they put a tax on, on a circulation or things of that nature. And --
Hugo L. Black: That was the old -- old idea but I already thought maybe.
Roger Arnebergh: And -- and then when you couple with that freedom of speech and then you have the right to disseminate your news, your information, your ideas, your opinions, your beliefs. But I just wanted it clear that it is my opinion is, the quick answer as I stated initially is that the book is obscene and therefore not in the area, but in order to try and reconcile all of these conflicting opinions and this forces them to give a working standard to all us I felt it was my duty to express to you my views in the matter which -- which I feel would solve the entire problem if they were adopted because it is only this commercial exploitation of filth that is put in the country today, and you wouldn't have the problem because if there wasn't money to be made, it wouldn't be written, that it wouldn't be distributed and it wouldn't be sold.
Hugo L. Black: Suppose the next book that was not filthy but it was decided to acquire it and the argument it was merely copyrighted it and we had the right to bar it.
Roger Arnebergh: And we would simply have the Fourteenth Amendment, where is the reasonable necessity that a public welfare requires the barring of it. Just as my property --
Hugo L. Black: Who is to decide whether or not read it to be subject to a requirement?
Roger Arnebergh: The same people who can decide whether or not I can use my property for a business purpose or a residential purpose. It's a constitutionally protected right that they can go right to this Court and it has to be you. And now with respect to the question obscenity, even if we ignore the basic distinction between free speech and copyrighted property, the book in question is obviously obscene. And therefore as I mentioned I was in the area of constitutionally protected speech or press. As the Appellate Court stated, under any test, the book concerned in this prosecution was properly held to be obscene by the trial court and we share such a conclusion upon our independent view of the evidence. It should be recognized that in this case as was mentioned by counsel there is no conflict in the evidence and further the Court stated, we reach the conclusion also when we have considered the book as a whole under tests that the appellant contends are applicable. Now this Court has expressed the standards that should be followed in determining obscenity. First of all the average person, but may I state that I do not consider a book critique necessarily be average person and the mere fact that something has a sale doesn't necessarily mean that the average person acts within his standards or that -- that it won't have any effect on him. First of all, the average person never buys all of the books. I mean you talk about the sale of a million books, well how million people are there in the country? It's a very small percentage, a small fraction of the people. So that's no proof. The fact that books of an obscene nature or suggestive or so on, that this particular book sold and it had some passages in it that were not delicately expressed. Then applying contemporary community standards, well again, I don't think we'd go out looking for trouble. It's when we receive a flood of protests from organizations of people who are concerned about the community standards and they are the ones who set the community standards. That we go out, we send an officer and he checks up and finds these books and of course, if we get back to the average person remember this, we have a problem there. If we will look at the people who are most familiar with the average person, we will go to the advertisers who spend billions of dollars a year in advertising and their advertising is designed for a 14-year-old mentality on -- over and large. So we must be careful who we consider. I don't consider that a person who has a broad experience and the wealth of education and the higher intellect that is represented by the Justice in this Court are necessarily the average person. Now the dominant theme of material, I don't know how many of you have read the book if you have read it, I feel sorry for you for having had to do so. It is just a series of sexual acts of various types linked together with nothing, but connecting sentences in my opinion. And does it apply to prurient interests? Well, again, I say we're all aware of the power of advertising and the effective constant repetition and you have that here and then it was mentioned that this had an important idea to convey or probably the important idea that it conveyed was best illustrated from a quote from it and well I won't read the quote. But in the end -- in this, the gist of it is that this homosexuality, this lesbianism is a fine thing because it enables innocent girls to have sexual pleasures without the problem of an aftermath that might be result if they're having the same experience with a man and therefore it's a desirable and a good thing. Now if that is a great idea to put forth to the world, I don't agree and now in conclusion --
Earl Warren: Now it has -- would this -- would this book be obscene under Section 311 --
Roger Arnebergh: Yes.
Earl Warren: -- on the -- of the state?
Roger Arnebergh: There is no question that it would have in my opinion and the dissenting justice of the appellate division of the superior court so found. In fact he -- his basis of dissent was that here the evidence proves a violation of the State law. Consequently the city can't legislate in this field.
Potter Stewart: Is there a difference in test of obscenity between the State law and the Los Angeles ordinance?
Roger Arnebergh: Oh no, we adopt that -- we -- we have -- we are -- we are to test, we think we were set by this Court in the Alberts case. That is the test to -- to that -- the appellate court applied in this case and the trial judge, frankly I'll say this. The trial judge -- he didn't indicate clearly what test he applied. He just said that as to him it was filth and there were words to that effect and I would say that I don't know just exactly what standard he did use. Whether he used the old standard or the new standard, but I don't -- the appellate court very carefully considered the evidence, personally made their own findings on the basis of reading the book and reached the conclusion that by any test, it was obscene.
Hugo L. Black: As I gathered from you the test here was that it was obscene because it contained descriptions that -- the descriptions of sexual acts.
Roger Arnebergh: Yes I think that, that is the --
Hugo L. Black: That's your --
Roger Arnebergh: I think that's the basis of it, yes. I would say that is really the thing, not the idea that it conveys but the method by which it describes these --
Hugo L. Black: And for those have been described that graphically in any other language as you would have believed it with that --
Roger Arnebergh: Well, let me say this. If they had wanted to describe -- I mean convey an idea about lesbianism, they certainly wouldn't have had to use the expressions and phrases that they have done. They -- there are --
Hugo L. Black: That they had described it -- would there have been any difference with the exact phrases that were used insofar as obscenity is concerned?
Roger Arnebergh: I think if there is a --
Hugo L. Black: Did it contain -- or simply as I understand you to say, along (Inaudible) the descriptions of the sexual act?
Roger Arnebergh: With -- with suggestive details and I think revolting detail.
Hugo L. Black: But description of that is what it is.
Roger Arnebergh: Yes.
Hugo L. Black: So that any book that does that which come under the ban, if you tired that as you're trying to get that, I think that would be the result.
Roger Arnebergh: I -- I think that any book, if the prevailing theme, the dominant theme of it is, is -- is a series of descriptions in -- in graphic details of homosexuality and normal sex relations is not -- it is probably obscene, yes.
Charles E. Whittaker: (Inaudible)
Roger Arnebergh: Yes and of course it has to be in such a manner that it does that, and that's why I think the graphicness and -- and the repetition and then combined with the -- with the suggestion that this is a wonderful thing to do, and you can get away with it, there's no penalty to pay. There's no need to be careful, there's no need to worry about it. Innocent girls can do it and it's nothing suspicious that it's so exciting and no suspicion is aroused when girls spend the night together.
Hugo L. Black: What happened to this character that was engaged before the book was ended?
Roger Arnebergh: She was murdered and not because of her lesbianism.
Hugo L. Black: It has relations to her acts with the man, doesn't it?
Roger Arnebergh: It had relationship to the fact that she called a man to commit a crime and then dumped him. It finally used that expression. “There was disregard in it.”
Hugo L. Black: And he murdered her.
Roger Arnebergh: Yeah it was a question of him -- jealousy was a theme of that and not the other. In other words she used to make love to this man and then when he -- she accomplished her objective through the use of sex, she said, “Well I don't need you anymore.” That was all added. That's just jealousy.
Hugo L. Black: How could this -- how would we say that this book sold by a man could read a lot of books, I mean here, which should be a description to that and no a quick warrant, must be barred by the law and which one would not?
Roger Arnebergh: I would say this that first of all, a book seller could not read a thousand books or so that he may have in his thought. But as the dissenting judge found and I think like in can anything, if you are at and if it is sustained and he has the responsibility, he will find a way by being more careful of from whom he buys and what he buys. I have sold books and I know that you can go into a store and a buyer at the bookstore doesn't buy a book without knowing what's in that book. Now it's a difficult thing to prove.
Hugo L. Black: But from your standpoint it makes no difference.
Roger Arnebergh: It makes no difference that's the point but I'm just taking this as far as the reasonableness of this required – is concerned, who is better in a position to know than the man who is selling it?
Hugo L. Black: I suppose your argument is that the State does have a right to censor obscene literature. But since it has the right to censor obscene literature it also has power to say that we're going to hold you responsible for selling whether you know anything about it or not. That's the basic basis your argument, that is.
Roger Arnebergh: I would say we have a right to prohibit the sale or possession of it, yes and if we have the right to prohibit the sale we have the right to require the man who has it in his business to establishing for the purpose of sale and at his peril not to -- not to have seen merit.
Hugo L. Black: So from your standpoint you finally get back to the place of whether it is constitutional to bar this kind of book even from the possession of a man who doesn't know what's in it?
Roger Arnebergh: Yes, in other words we have the same thing as the State law which was involved in the Albert's case except that we do not make the personal knowledge of the -- of the man commercially dealing it a necessary element to prove that it was a crime.
Hugo L. Black: You abide to the (Inaudible) opinion.
Roger Arnebergh: That is correct.
William O. Douglas: Did I understand you to say you had a Bureau of Censorship in Los Angeles?
Roger Arnebergh: No we do not.
Earl Warren: Mr. Fleishman.
Stanley Fleishman: Thank you, if the Court please. I would like to address myself merely to one point that I think has been stated so much that it needs a little clarification and that is the difference between the commercial exploitation of filth that Mr. Arnebergh has described it. If this Court was talking about in Roth-Alberts and the attempt to equate it with what's going on here, here there was no pushing of anything. If Mr. Smith was commercially exploiting anything, then every person who went to the drugstore and has any books and magazines there is equally commercially exploiting. Every market that has paper bound books is equally commercially exploiting. These are easy words that give it a meaning that doesn't apply here. What Mr. Smith had was a bookstore and he had a book on the stand on his shelf. In Roth, as we pointed out, there was intrusion into the homes of the unwilling person. There were mailings, there were mailings which were exploiting there can't be any denial in terms of the advertising there being at least very aggressive. That differs entirely from the situation we have here. The situation we have here is simply whether a person who sells books is to be treated differently because he is selling books, because he is selling the ideas whether he is to be treated differently than a person who is selling these cattle or a person who happens to have a machine gun. A point was made in terms of the buyer or book buyer taking normal precautions. Well, the record here shows that the -- Mr. Smith took normal precautions. The record shows that he purchased his book through the mail, that he received it from regular jobbers, that he had a book in this case, “Sweeter than Life” which was copyrighted and we've heard a lot about copyright and whoever heard of copyrighting pornographic literature before anyhow? Isn't the bookseller protected at least to that extent to be seeing the copyright? Well, no it's taken by the Government. It's -- the book is here. It's in the congressional library and anybody can go in and buy it. I don't know what kind of evil Mr. Arnebergh is talking about the evil of this book. He's taken everything he could find out of the book and hit it like he has put into his brief, all of these graphic descriptions and it went through the mail and everybody has read it. No evil, this isn't eating poison. Would anybody for a moment suggest that the reading of this brief which is the undiluted assets that Mr. Arnebergh is complaining about, is anything there, maybe accept something that would offend your personal taste and that's all. Insofar as we're talking about the moral, Mr. Arnebergh says there is a lesson here that lesbianism is good. I happen to read the book differently, but this Court said that you can talk about adultery that way. That you can even advocate adultery and that doesn't offend the First Amendment. And if that's what the book said, I deny it, but if it is what the book said that would not be private in any fashion we submit from the protection afforded by free speech. I think the Court has pointed out the obvious fallacy or what seems to me to be the obvious fallacy of the copyright argument in that society is concerned much more with the right of the people to read than it is with the right of a person to say what he wants to say. The right to say it is important, but the right of people to hear it and weigh it is far more important. And that includes the right to weigh and consider ideas we do not like and that is what's in jeopardy here. Mr. Arnebergh recognized that you have to take free speech out to attempt to rationalize the illogical and the unfair aspects of this case. I don't think you can read free speech out. The right to distribute the book is equally protected with the right to -- right of the book. Thank you very much Your Honor.