Warren E. Burger: We will hear arguments next in 73-557, Jenkins against Georgia. Mr. Nizer.
Louis Nizer: Mr. Chief Justice and may it please the Court. This is an appeal from the Supreme Court of Georgia which affirmed a criminal conviction for the exhibition in a local theater in Albany, Georgia of a motion picture entitled “Carnal Knowledge”. The defendant, Billy Jenkins who was a manager of the theater was fined $750 and sentenced to one year probation. The fine has not yet been paid and the probation has been stayed pending of all appeals. There is no question that only persons of 18 years of age or older were admitted or would be admitted to the theater. Minors or juveniles are not involved in this case. Also, this case does not involve obtrusive exhibition to unwilling persons nor does it involve pandering despite the trial judges’ instruction to the jury held to be a proper judge by the Supreme Court of Georgia and despite the undisputed fact that there isn’t any alter of evidence in the record of pandering. This alone, I shall later allude to as my argument on due process as sufficient for reversal. The issue in this case is of sanity. “Carnal Knowledge” which has been decided obscene by the Supreme Court of Georgia has been proclaimed by discriminating critics throughout our country as a serious, artistic work. And its distinction derives from the combined talents of many of America’s leading contemporary artist as Mike Nichols, the well-known stage and motion picture director. Jules Feiffer, a satirist and playwright, Jack Nicholson, Candice Bergen and Ann Margaret who incidentally won the Academy Award nomination for her performance in this very picture. And “Carnal knowledge” has played to 17,500,000 people in some 5000 theaters in small and large cities including the State of Georgia, enjoying popular and discriminating acceptance and then an investigator from the Sheriff's Office in Albany, Georgia sees the film. One month later, Jenkins was arrested for having exhibited this film and the sole charge was public indecency. He was tried by a jury which was instructed that he could also be convicted of two other crimes for which he had not been charged namely obscenity and pandering, reversible again. The jury after announcing that it was hopelessly deadlocked, it would stay here until July 4, finally brought in a general verdict of guilty, so that we cannot tell on what of these three counts, two of them illegally judged, improperly judged, he was convicted of. On appeal to the Georgia’s Supreme Court and without hearing oral argument, the Supreme Court of Georgia upheld this decision by four to three. And our appeal from that decision presents one particular constitutional issue which is of profound significance to cultural freedom. And that is, will the sensitive regard for First Amendment rights evidenced by the clear announcement in the Miller decision that “hard core” pornography and only “hard core” pornography maybe suppressed, be permitted to be stretched and grievously misinterpreted, so as to strike down a work of serious literary and artistic achievement such as “Carnal Knowledge”. The dissenting opinions in the Georgia Supreme Court expressed shock that exhibiting so meritorious motion picture should be a crime. And that apprehension, Your Honors, has swept through all the creative elements of our nation as the plethora of amicus briefs in this case indicates. From producers who fear to risk production, to theater owners who fear to exhibit on pain of criminal involvement, to book publishers who fear to print beyond the safe norm, to authors who fear to be innovative and most important of all to the public which maybe deprived of access to aesthetic diversity which flourishes best when the orders does not reigned in and when we must not conform to the lowest common denominator of safe presentation and the damage we state here is not only to the work which has been barred but the less visible and subtle encroachment, self-censorship due to one’s certainty. In short, Your Honors, the decision appealed from though have a chilling, indeed a freezing effect on the exercise of First Amendment rights of expression. Unless, -- unless, the threat of this holding of obscenity is dealt with by vigorous renunciation and the limitation of “hard core” pornography is declared to be what the Miller decision so emphatically stated it to be, the soul exception to the protective shield of the First Amendment. Professor Bickel had written in 1962, that the radiating consequences of decisions impinging on the First Amendment would encourage Constancian tendencies. And recently, he stated that this decision on “Carnal Knowledge” does not conform to the ruling of the Supreme Court in Miller. Indeed, Your Honors, it doesn’t. It is unthinkable that this picture should be confused with “hard core” pornography. The film depicts two college students over a span of about 30 years. They grow older but they don’t grow up. They are preoccupied with sex but the picture is not. It does not bombard the senses with erotica, driving out all other ideas which is a typical characteristic of “hard core” pornography. On the contrary, it depicts the failure of the boys’ lives though they are successful in their professional careers because they cannot establish meaningful relationships and they are ultimately crushed by boredom, loneliness and impotency. The picture deals with the human predicament resulting from the enthronement of impersonal detachment, the inability to love and the sequelae of cruelty and psychic illness. And this artistic treatment of this problem which besets this decade and has evoked many social and philosophical studies has been the subject that plays in the past from Sternbergh to Tennessee Williams and that is why the New York Times reviewer called it “profound”, the Saturday Review “mature”, the Atlanta Journal “one of the best films in the long time” and the Catholic Film Newsletter despite some reservations, “a perceptive and brilliant put down of a certain lifestyle.” And that many critics throughout the country who have heaped similar praise upon this picture, certainly all couldn’t have been fantasizing. The language in this picture, Your Honors, is blunt although not within dictionary distance of the erotic poem in Kois against Wisconsin which this Court understandably held was not obscene because it bore “some ear muffs” of an attempt at serious odd even though the authors reach, exceeded his grasp, as Your Honor said. Here, it can be claimed credibly that a literary and artistic standard was achieved and it was not beyond the grasp of the multiple talents which reach for it. The story in “Carnal Knowledge” predominates over any visual presentation. The greatest care was lavished on sex, lighting, camera effects, musical score, brilliant ensemble acting, all under the direction of Nichols, a claimed among the most gifted of cinematographic artists who synthesized the ancient arts of painting, writing, composing, acting in a new universal medium. And the resulting dominant effect of the picture as a whole is a sincere and earnest effort to create a literary and artistic work and to confuse that result with pornographic imbecility is cultural illiteracy. The decision below ignores inexcusably the Miller distinction between commerce and ideas and the commercial exploitation of sex for its own sake. And it does make the distribution of films and book a more hazardous enterprise. Now, this Court has reserved the right of independent review of a constitutional fact of obscenity. And we submit respectfully that the answer is clear that “Carnal Knowledge” is not obscene. Now, another reversible error which we urge was that the Supreme Court of Georgia in its opinion maybe interpreted to have applied the community standard to determine whether the work had value. It is somewhat ambiguous but that ambiguity is cleared up, Your Honor because in the subsequent decision by the same Court, the Supreme Court of Georgia in Slaton against Paris Adult Theater, it was clear that it expressly applied community standards to all parts of the obscenity test. Now, of course this is fatal error. Even if a majority of the people in the community thought otherwise, Chaucer and Boccaccio, and Ravalet and Fielding would still have literary value. The test is quality not popularity. And that is based on the inherent evaluation of the whole work not by poll taking. A work which has literary value has therefore the impregnable shelter of the First Amendment. It cannot be subjected to the other two tests of obscenity, default that it’s immunity. So, we need go no further. But the fact is that the remaining two tests of obscenity are also not met in this case. “Carnal Knowledge” does not appeal to prurient interest nor is it patently offensive nor does it depict “hard core” sexual conduct. The work belies any purpose to titillate or to exploit sex commercially for its own sake. The camera is almost always on the faces of the characters not below. The camera angles are deliberately discreet picturing the least not the most. And when the point is made it terminates the scene not extending it with explicitness and sex is treated in this film as a sometimes battling and exasperating part of life but without lewdness or (Inaudible) and briefly stated that Your Honors, material cannot be obscene unless it meets all three tests of Miller. “Carnal Knowledge” is a film which meets none of these tests. How large should or must the community be which determines the applicable standard for pruriency and offensiveness. The state decisions your honor have varied and conflicted with each other. Some apply in state like New York and Washington. Some apply in the local like Florida and Alabama and one state both, Texas. In this case, the Supreme Court of Georgia held that a local standard was permissible but gave no clue as to whether that local meant county, city, neighborhood, block or whatever. And that local standard is therefore void for vagueness. Moreover, even if the local area were specified or defined precisely, we believe, it would create constitutionally intolerable consequences. Let me cite a few facts in support of that contention because we urge that the State geographical limit is to be the minimum requirement.
Byron R. White: Mr. Nizer, can I ask -- I believe, let’s assume you’re correct in saying that under Miller, a movie would not be obscene unless and it was “hard core” or let me assume that it’s “hard core”, whatever you might mean by “hard core”. If that is so, doesn’t the good deal of the argument about local or the national standards wash out?
Louis Nizer: It would end the case there quite right, Mr. Justice White.
Byron R. White: But there’s hardly any room then for a local standard could be whatever the local standard might be but if a work didn’t happen to be “hard core” the work wouldn’t been obscene.
Louis Nizer: That is right. And it would not direct --
Byron R. White: And the “hard core” standard, if that is the standard is a national standard, is it not?
Louis Nizer: Yes.
Byron R. White: It’s a First Amendment standard.
Louis Nizer: Right. And not only would that that. In support to that view, it seems to us, we are dealing the literary and artistic value, community standard is irrelevant.
Byron R. White: Well, again I just suggest that if it’s “hard core” pornography and it is that Miller limits obscenity definition to the argument about national and local standard, you are beside the point.
Louis Nizer: Yes. And the only reason I addressed myself to it is that this case raises several issues and it seems to us that in the interest of what Justice Brennan has referred to as the institutional burden on the Court to stop perhaps hundreds, maybe thousands of applications as to what is the area, the geographical area for community standard, that it might be worthwhile for this Court to examine this matter and I address myself to it even though case would be over if this case isn’t -- if the picture isn’t obscene at the end of it, reversal would be required. Indeed, it would be required on due process entirely apart even of obscenity. So, I wish to -- if this Court should wish to further examine this matter because as we read the Miller decision, it didn’t specify what the geographical area must be. It merely was permissible with respect to local or State. In their indications, it meant State to us. I wanted to point out that even if the local area were precisely defined, we think that it would still create an intolerable burden on the First Amendment for these reasons. There are more that 78,200 separate political subdivisions in the 50 states. There are approximately 14,800 Motion Picture theaters in the United States and in many states, these subdivisions overlap. Thus, a single theater or a bookstore could be located within a number of different subdivisions. This creates a sort of a crazy quilt of conflicting standards and all of this would cast intolerable burdens on the distribution and dissemination of communications. Now, Your Honors, I’m sure recognized that isn’t feasible to prepare different versions of books and films for distribution in different parts of each State. These practical considerations invade the constitutional realm but they have a chilling effect on the expression of thought and that they compel the author, the producer to run the gauntlet of thousands upon thousands of uncertain determinations on pain of criminal punishment?
William H. Rehnquist: Why is that argument any stronger, Mr. Nizer, than the argument that the producer ought not to be compelled to tailor his product to the perhaps vagaries of 50 different states.
Louis Nizer: If this Court would recognize a review of its consideration as to a national standard which is what your question, Justice Rehnquist implies to me, we would not be unhappy. But we think --
William H. Rehnquist: You are having rejected the national standard, how much force is there in the argument that although we can see we have to do it for 50 different states, we shouldn’t have to go beyond that.
Louis Nizer: Great force in that the vulcanization of this issue of submissions to 78,000 potential divisions as against 50 states seems to me to be great in difference in degree. And what we’re dealing here with is the rule of reason as this Court had said, no provision will be perfect and furthermore there is a natural division for State rights, since the statute is State statute and it seems to me rather natural to follow that sovereignty of that geographical area rather than omit its fragmentation to dozens of thousands of local communities each of which require definition. So, I think it would at least diminish the chilling effect of these limitations. At least, I respectfully submit that’s a great possibility. Now, another form of constitutional inhibition caused by local standards is that an affirmance by the highest Court of that State of a purely local finding of obscenity, in effect, forecloses other local areas within the State from their right to make their own test, not legally but psychologically and as Justice Holmes wrote in a dissenting opinion below. Local standards, he said, placed in the hands of the few, the taste of cultural advancement of the many who are members of the greater State community. So, where this is a State statute, it is more reasonable to insist upon a State standard thus also limiting the number of confusions and the hodgepodge of local areas overlapping with each other and coming to this Court to ask whether they are constitutionally viable standard. I now proceed to the --
Speaker: There are many city ordinances in this general area, aren't they, throughout every State in the union or most states.
Louis Nizer: Yes, and it seems to us that the city ordinance defines by its own arrangement, the specific area, but where we are dealing with a constitutional question, and after all the constitution is national, it seems to me that we ought to tend towards this theory which I respectfully submit to you that as you widen the circumference of the geographical area, you decrease the possible inhibition of the First Amendment. The little town of a block or the neighborhood, more probability of inhibitions upon First Amendments state less and even national still less, therefore I think the tendency ought to be to make the geographical area larger and by natural boundaries at least the minimum requirement ought to be the State which I read the Miller decision to tend to, although I’m not certain.
Speaker: Well, I also read the Miller decision even though I didn’t join it and it talked about local standards and I’d rather gather that that was self-defining, that the jurisdiction from which the jury came from that was trying that case.
Louis Nizer: Yes, but --
Speaker: That’s at least arguable, isn’t it?
Louis Nizer: It’s certainly is arguable, but I think it would be most unfortunate if we didn’t make a standard, community standard, the minimum requirement for constitutional reasons, do delimit the impact upon the right of expression. It is difficult enough as it is, as Mr. Justice Rehnquist just indicated by his question really, it creates the practical problem, but it invades the constitutional realm. How are we going to make a book into so many sections that we can give it to each local area -- at least if you have 50 states, that’s bad enough, but it’s a little easier and that’s true of Motion Pictures.
Thurgood Marshall: What would you do on the State area if the case rolled out in Texas and Alaska?
Louis Nizer: I’m not sure, I understand the question. I would have each State area --
Thurgood Marshall: You’re not -- will you put it on size, the number of people or --?
Louis Nizer: No.
Thurgood Marshall: You said geographical areas solely.
Louis Nizer: The State statute ought to be interpreted as a minimum requirement, the community standard must be gaged by that State in which the statute exists.
Thurgood Marshall: Yes, but that does not even build the number of people.
Louis Nizer: That is right, sir. That’s the way I would interpret it.
Warren E. Burger: Well, Justice Stewart just suggested however the city arguments vary, for example, on the First Amendment area of parade permits and the many types of demonstrations, do they not?
Louis Nizer: Yes they do, Your Honor and I suppose that we will never have anything, but an approximation of a practical solution where you’re dealing with the constitutional prerogatives into divisions into States and the Fourteenth Amendment applying them.
Warren E. Burger: Your argument seems to run a little bit counter to the traditional idea and maybe reject the traditional idea that the jury is the conscience of the community from which it’s gone.
Louis Nizer: I believe very strongly in the jury system that when they decide facts, when they decide constitutional facts, and I think as this Court properly said, you reserve to yourselves the independent review because of the overall umbrella of constitutional requirement. And I would distinguish jury inviolability between ordinary facts in which I trust their commonsense. They have seven senses, not five. They add some comment and I believe in them, but when it comes to a constitutional fact as Professor Bickel said, if a jury decided that a woman’s leg was up seen, this Court would be urged from or if it was decided that the statue of David must have fig leaf on it, this Court would be heard from and we wouldn’t accept the jury’s decision even though I trust their wisdom generally. And it is because of this question being instinct with constitutional problems that we urge that special consideration. I may say in all candor, since the question of national standard has come up, understanding Your Honors’ ruling and accepting it respectfully that there is too much diversity in a large country such as ours to have a national standard. But if this Court were to give further consideration to that matter, I would like to submit diffidently three reflections. First, there is what I would like to call a technological equalizer in the nation. The media today, the same columnist in different newspapers, News Week, Time magazine all over the nation, ease of travel etcetera have reduced the diversity in the nation. Not entirely, but have reduced it. Secondly, I think there is diversity within the State and within the locality. Upstate is different from downstate in many areas and indeed in the locality, the urban and the other city certified aspect that even of a small town is quite different. Finally, in the Federal Obscenity Act, Your Honor and in other such areas as mail and transportation, international transportation, we take a national standard and I would think that we would not be unhappy if Your Honors decided because of these considerations to perhaps set a national standard on the matter of this importance. But we urge only that the minimum standard ought to be the State or there would be hopeless confusion and more impact upon the First Amendment right. Time does not support me and I would like to lean on our brief with respect to due process, but I would like to just point a finger at two propositions. First, Jenkins was charged with Section 26 2105 which is public indecency and was the only charge in the accusation. Then the court below and that charge was approved by the Supreme Court of Georgia or else I wouldn’t raise it here. The court below charged the jury that it could also find him guilty of obscenity which is another section and another crime, 2601, not 2605, and they could also charge him with pandering which is quite preposterous. There’s not even a word of evidence about that and this case doesn’t fit pandering anyhow. This isn’t a close case such as Ginsberg where that became an issue. And therefore when the jury brought in a general verdict, no one can tell what they found. In addition to that, the Supreme Court of Georgia construed 2105 which is public indecency together with 2101 which is obscenity, construed them together. They have different penalty provisions. They were passed at different times by the legislature. One of them even submits a tax for distributing obscene material. No one knows which penalty would apply. And as construed together, 2101 becomes unconstitutional because it doesn’t meet the standards of this Court and 2105 is unconstitutional because that only applies to conduct and shouldn’t have even been submitted with respect to dissemination of material. Thank you.
Warren E. Burger: Thank you Mr. Nizer. Mr. Hight.
Tony H. Hight: Mr. Chief Justice, may it please the Court. First, I like to, if I may, go back a little further in the chronology of the case to point out that sometime prior to the instant case in a case involving Martin Theaters which you will find on page 66 of the record below, some remark brought to at the same film “Carnal Knowledge” was involved in city of Albany, Georgia which is some approximately four hours drive south of Belanc (ph) and after a hearing in Federal Court, after they bring him out back to State Court, the Martin Theater changed and the District Attorney reached an agreement concerning the film “Carnal Knowledge” and Martin Theater agreed not to show this particular film in Albany Georgia, and this is not an issue where the film “Carnal Knowledge” is just rushed out for the first time in this particular case, but it was in the community. This was an issue in the Motion Picture industry in Albany, Georgia sometime prior to that. In the present case, prior to the matter coming up for trial, the Court would notice that there were number of demerits file to the indictment or accusation as such and there were six of these demertis that prior to attacking the accusation. At the trial itself the film “Carnal Knowledge” was shown by the State. The State rested. There were other evidence presented by the defense in this particular instance of other books and it settled only local market which the Georgia Court disposed off, saying it would not be relevant to judge one by some other particular matter, but there was little else, the only other thing that came in, touching the film “Carnal Knowledge” was the unsworn statement of the defendant stating that this was being shown or had been scheduled to be shown in several places in Georgia and our reference to the fact that it has been acclaimed as one of the particular pictures. As we pointed out in our brief under new Georgia law, you can not by the use of an unsworn statement, introduce evidence and make it admissible or appropriate value for the jury to the use of an unsworn statement. There are other means to get this material in evidence. To bring in any critical reviews, anything that would go to show other facets as to the film “Carnal Knowledge”. But what the jury had in this case, the jury that had to decide this issue was the film “Carnal Knowledge” and this was it. I think if the Court will look at the record, see this is what they had decided on, not any reviewed by the New York Times or anywhere else --
Speaker: Mr. Hight.
Tony H. Hight: Yes sir.
Speaker: Excuse me for interrupting, but I was under the impression that the Court instructed the jury that it could believe the unsworn statement entirely if it so desire.
Tony H. Hight: Yes sir, and they can consider the defendant statement, but it can not be used, sir for the purpose of introducing evidence. That would have to be introduced in another fashion.
Speaker: It could tell the jury that you may believe it entirely as true.
Tony H. Hight: Yes.
Speaker: What’s the difference between that and evidence?
Tony H. Hight: I think it’s the point the Court considers and has in the past and could support with core and prohibitive value in an evidence in a particular case. The Court says that you can believe his statements. His statements, his knowledge and etcetera, but as to the other facts, it comes in and would have to brought in by some other means such the best evident proof, he can not utilize his unsworn statement. To introduce evidence, I would have to come into another means. And in this case, there was no such problem because you had a situation where other evidence was introduced. There was no question about him relying on an unsworn statement as a sole purpose. He could have brought in any other evidence in a proper manner presented before the Court.
Speaker: Mr. Hight, what was difference in the role of the jury in this case and the Board of Censors?
Tony H. Hight: Sir, I think it’s quite a different view. The jury -- I think the Board of Censors, if you may apply to Maryland might sit down to say we have set a particular group. We have made this particular distinction, when the person having a review from that particular issue but on the System of jurisprudence, the jury is the ultimate triar of fact in a particular case.
Thurgood Marshall: And so they look at the movie?
Tony H. Hight: Yes sir, they looked at the movie.
Thurgood Marshall: And they decided it’s obscene?
Tony H. Hight: Yes sir, this is what the --
Thurgood Marshall: Now, what if suppose the Censor Board is looking at the movie and saying it’s obscene?
Tony H. Hight: Well, I think it is just the difference between the requirement -- so, the two of the Censor Board would simply -- in my estimation --
Thurgood Marshall: The Censor Board will say you shouldn’t do it, and this the jury says, you go to jail.
Tony H. Hight: This could be so --
Thurgood Marshall: But they performed the same function.
Tony H. Hight: No sir, I don’t believe so.
Thurgood Marshall: Then why can’t you take the Board of Censors to say that the picture is obscene, the man goes to jail.
Tony H. Hight: Because this is not in our particular system. I think what they’re doing, the Court of Georgia does not have a Board of Censors and as Maryland does, now I think you have certain reviews for the Board of Censors that you do not have from your jury.
Thurgood Marshall: You did have a Board of Censors.
Tony H. Hight: We do execute some -- far back we did, yes sir. But what I would point out to the Court is that, this is the status of the case as it came up and as it left the Trial Court, then we when we came to the appeal, in the case there were basically two areas that went into -- was gone into. The first was the six numerous of their -- or acts of the demur filed below, and the only other issues raised in the Georgia Courts were the judge either failed to charge or a charge of error on part of the judge, in fact did charge. In that particular case, the Court will notice that as to demur number one and two, below these were expressively waived in the Georgia Court, as to the demur number six, this was expressively waived in the Georgia Court on page seven and none of the appellant brief. So, what the Court had to forward in the Georgia Court was an attack on the demur or the accusation as such saying that this accusation did not include the particular language of 2101 (b). This was the attack in number three and number four, the attack was the fact that the particular accusation did not have -- or the statute which he would base did not have this language contain therein. And the fifth one has been dropped on the basis of the Paris Adult Theatre versus Slaton that this Court decided as to the other picture as to public and non-public place. This is what was raised in the Court above though was simply the judges’ charge. And the question as to whether or not the accusation, not the statute, but where the accusation should have had this particular language including in the accusation. Third is the point that they say that this did not have or the statute which it was based, did not have -- that the accusation was based did not have this language on it, but at the time of the accusation and not the statute itself. The Georgia Courts in applying the Miller decision used the very language of the Miller decision. It stated that, local or State standards, the very -- in fact the very language of this Court in the Miller decision. The local or State standards did not go pass that particular point. So, the State would argue to the Court in this case that there has never been a constitutional attack on the statute in the lower State Court. It has been an attack on the accusation itself and it has not been attack on the statute for being over broad or being vague. Now, an issue was raised in that particular area as I pointed out on the fact that the code section involved did not include the Georgia definition of obscenity. The Court will look at the entire statute section; you will see that it is defined as the distributing obscene materials section. That in this section 2105 is included and the definition of obscenity is included in the Section 2101 (b) as part of this particular provision. And in 2105, the Georgia Court require that 2011, that means that you have to got to go to the indecent exposure statute to see what the prohibited act will be on indecent exposure, but in this particular section, it requires it and it has to be the distributing of obscene materials. Now, in this area, the Court charged in the lower court. It wasn’t done in the Supreme Court for the first time, the lower court charged the language of all three. It told them that charge would be a crime of distributing obscene material that he was charged for these particular acts and then charged the jury in very explicit language and the Court said that the question is not whether these acts were done as such but, if these acts were in fact done, would this be obscene under this provision of distributing obscene material. The Court charged him. There’s not the question is not public indecency or exposure but the question is if these acts that are depicted were done on the screen. Does this taken in the view, the Georgia statute and test on obscenity, does this show that this movie is obscene under those particular standards? In the judges’ ruling, the jury so found but to call the Court's attention first to one point, there was never any enumeration of errors raised in the Georgia Courts on the general grounds that the jury could not have found this particular film obscene, under any standard on the general grounds. In Georgia, Courts has liberalized in the last few years, its rules on bringing them out before them, saying that anytime the before oral argument or before the Court decides the issue that any defect in the enumerations area, or the notice to appeal can be upheld in that particular time, and there was never an attack made or any charge made in the Georgia Courts that this film was not obscene, it was never an issue raised in the Georgia Courts.
William H. Rehnquist: Will you mean not constitutionally obscene, because certainly the Supreme Court of Georgia, both the majority and the same appeal spend a fair amount of time on the subject whether or not the film was obscene or not, didn’t it?
Tony H. Hight: I think if the Court would review the enumeration, where you find that there were a number of situations where the request was that the judge erred in making this particular charge, because there was nothing in the evidence, to support any such charge or any such finding by the jury. And the Court, below in the majority opinion, I don’t believe the Court of Georgia has any problem stating the film, where something is, this is obscene, and we find this to be obscene. But in this particular case, the Court says after reviewing the record and reviewing on this Court we affirm. Holds the record in this case amply supports the verdict of guilty showing that the film “Carnal Knowledge” in violation of distributing obscene material. And what I am saying in this Court now is this was an issue that has not been raised below in the George Courts by the appellant in the proper manner.
Speaker: Yes, but this just recommends that the Georgia Court actually decided the question anyway. I mean that if they dealt with the issue --
Tony H. Hight: Yes sir, he suggests this. What I would suggest back is that the Court did not reach this particular point because it was not an issue, but it did reach the issues that were raised below and that was whether the jury could on a basis of the charge that the Court find that this were included in the film itself.
Thurgood Marshall: Didn’t the Court say it was obscene?
Tony H. Hight: No sir.
Thurgood Marshall: Where the Court says that the jury found this obscene and we affirm.
Tony H. Hight: I said we affirm the jury’s finding of guilty.
Thurgood Marshall: The jury’s what?
Tony H. Hight: Yes, sir.
Thurgood Marshall: What did the jury find?
Tony H. Hight: Found guilty of the distribution of obscene material.
Thurgood Marshall: And the Court of Appeals upheld that judge with affirmance on the question of obscenity?
Tony H. Hight: Yes, sir. But this issue is I would point out to the Court was not raised below and the Court --
Thurgood Marshall: Because now that the Georgia Court has passed on it?
Tony H. Hight: No sir. In my opinion it is not sir. It’s that the --
Thurgood Marshall: Even though the Georgia Court passed that?
Tony H. Hight: I think what the Georgia Court said was to go and back and look at issues that were before them, that they had to make such a ruling on.
Thurgood Marshall: And they did!
Tony H. Hight: Yes, but I --
Thurgood Marshall: Is that ruling before us?
Tony H. Hight: Yes, sir. The ruling they made is before you, yes.
Warren E. Burger: Well, I’m little confused too on page 30-31 and rather brief charge which embraces a large part of the relatively brief charge of the Court, at least the jury. I note that the word obscene and obscene conduct appears five times at least. I might have missed some, so the judge certainly submitted the issue of obscenity to the jury.
Tony H. Hight: The issue was submitted to the jury and the jury made a determination, if the Court place. The Georgia rules of the enumeration there that you have to delineate the issues that you are appealing upon for the Court to reach a determination at this Court. This issue was not ever raised by any enumeration of error at any time, prior to the Court’s determination. Now if the Court can say that by affirming the jury’s findings in this fact, this does decide the issue of obscenity and that would be this Court’s decision that they did reach that particular point.
William H. Rehnquist: But if you look at Justice Jordan’s opinion at pages 53 and 54 of the joint appendix, he says that Trial Court correctly charged this definition of obscenity of the guideline for the jury to apply in this particular case going ahead mentioned the Roth case, Memoirs against Massachusetts, our decision in Miller against California. Whether or not the Supreme Court of Georgia had to pass on that and view it or whatever the bill of exceptions before them was. It seems to me that they did say that it was constitutionally permissible to find this film obscene. Do you disagree with that?
Tony H. Hight: I think you could reach that assumption on what I am saying to this Court is that, this was not an issue raised and brought before that Court as one of the issues in the case.
William H. Rehnquist: But our rule on review is that, even if the Supreme Court of the State might not have had to deal with the thing under its procedure, if it in fact dealt with it, then it’s before us also, at least that’s my understanding.
Tony H. Hight: Yes sir, in my opinion maybe wrong, but this is what I read in the entire facts in going back to the entire view of the thing is that issues were raised as to the request of charge that the Court had to find them certain evidence, where it was available for the jury to consider on other matters that did not reach the issue of obscenity. Well, if this is wrong then it would be -- if I’m wrong then it would be considered in this Court. In any case the state below, or the Georgia Supreme Court below stated that as they have done in number of cases as in the Miller versus California case, the test of obscenity is another provision. It’s not in the same provision it would charge with. A definition section is otherwise. In Georgia you also have in murder cases, situations as to murder, you have got some other sections that go and limit murder. When you get into question that would justify a homicide which would apply in particular case. In this case, the Georgia Court said only that in 2105, since this was on the distributing of obscene materials, the entire code section had to be considered together, which included the definition of obscenity in 2101 (b). In that particular probation it just delineated the Georgia Obscenity Test and incorporated that as part of the 2105. Now, this is not a new rule and it is not -- it is not something that brought out for this case. This has been the same thing for a number of years where they say that they have to consider the entire code section and not just pull out one section, if you are to construe this, it covers the same basic materials. And the Georgia Court consider them together and we urge to the Court that this decides, if the Court did reach the question of obscenity as to 2105, that this does cover that particular material on non-federal grounds. So, the State Court has so construed and included in the definition of obscenity 2105 and the 2101 (b) together and should solve that particular matter. The only other thing raised below other that the charge itself, not only as I pointed out before was waived on page seven, they made an issue that the use of the word knowingly in 2102 was not appropriately done and was specifically waived. But in this particular case, if the Court pleases, there was no attack below on the Georgia statute involved here, on the question of over breadth of the particular statute or any vagueness on the statute. This was not raised before the Georgia Courts. There’s nothing in the Georgia Courts’ determination of the case as to vagueness. Getting into the area of due process, if the Court pleases. In this particular area, the Georgia, of course as I pointed out acquiest to the factual situation, this is not something that just simply jumped out at these individual at least onetime. This is something that had been pending in Albany, Georgia for sometime. The statute was on the book and the same statute that had been applied previously in the Martin Theater’s case. The Georgia Courts and has previously said much before that point is that this, in each case when you got a code section that pertains to the same matter, that you have to construe the entire code section together to reach a determination as to what the contents would be. And the Court recently say that on 2105 and it falls on the area of distributing obscene material applies that the definition that is given in the code section on distributing obscene material would apply in that particular case. And this is what they did in that particular case and it was not an unforeseen or something that would not particularly come out in that particular area. Going into to several areas, if the Court pleases. First, particularly in the area of National Standards as oppose, as to local standards, the only issue raised below as to any type of standard was the question whether the Trial Court erred in charging national versus local standards. There was no issue raised at all anywhere as to a State versus local. In the Georgia Court, in the trial court refused to charge national standards. The Court did charge in that particular instance, the same community standard that has been the test says, since Memoirs uses the -- in the community that is say local community, they used the same language that has been used throughout most of the nation as to community standard, but it didn’t define that it’s local. In this particular instance, the Georgia Court did not reach the issue again because there was no issue raised as to State or local, the Court simply held the Trial Court was correct, when it said that national standards would not apply. And this is the only issue as to State versus local standards raised below, whereas to local versus national. There was nothing that’s raised here. I think the thrust of the State’s argument, if the Court please, is basically is that all the points raised here are raised ab initio, before this Court for the first time. That they were not properly raised below in the State Court, that the State Court did not have the opportunity to pass upon them in the issue they are now raised. The State Court didn’t meet the objection raised in the Local State Court. Now, I think if the Court look at the difference in the enumerations of error, in the arguments made below to the State Court and the arguments made at this time at this Court. The Court will see there two, entirely different set of arguments and a complete new set of points that are being raised for this time. One further thing I’d like to call to the Court’s attention is the question as to the jury. We feel that in the Miller case, the Court, for the first time placed the obscenity area in a situation where the jury would make a determination as to standards that judge had found. To eliminate a lot of review by the jury having a standard that worked very much like your reasonable man theory, where the jury would make a determination in the Court having the opportunity to review if there is a constitutional question involved, the Court then reaching it on that particular case and on those limited number of cases. We think that the fact that the Court has delineated the fact that local or State standards applies and that the jury has an important part, makes a great step forward in the area of the obscenity cases.
Warren E. Burger: Thank you Mr. Hight, thank you gentlemen. The case is submitted.