Peoples Perspective Obscenity

[Moderator] Tonight, our panel will consist of Mr. Steven Joseph, Assistant District Attorney, Mr. Stanley Issinghoff, attorney with the City of Wichita Law Department, Mr. James Glover and Mr. Jim Phillips, who have been working in various aspects of defense with the issue of obscenity. Our speaker, who will start off the program this evening, is Mr. James Ahrens, professor of constitutional law with Washburn University. He will get the program going and then our panel will react and, time permitting, we hope to have some questions from you later in the program. Thank you. Professor Ahrens? [Ahrens] John, thank you ladies and gentlemen and others here in Topeka for the opportunity to come down and share with you some observations and concerns that i have with regard to a variety of areas in constitutional law, but tonight, of course, the subject being obscenity. The gentlemen of the press have asked me to comment and

briefly give you my punchline because I have a proposal which I expected to build up to, but apparently there is a press of time tonight and that they've asked me to start at the end and go back to the beginning. So, acceding to their wishes, I will give it to you and then, later on, maybe try to give you some of the reasons in somewhat greater detail as to why I have suggested this is a possible compromise. Essentially, the compromise position, which I would propose as something between that which was adopted and has been urged many occasions by, for instance, Justices Black and Douglas, neither of whom are presently on the court- the view of, more or less, laissez-faire. The view, which I think can be designated as the strict constructionist view of the Constitution, as Justice Black was often

quoted saying. He insisted that the Constitution- the first amendment to the Constitution provides that Congress shall make no law regarding the freedom of speech or a press and Black insisted that no law meant no law; that's the way the Constitution is written, certainly. That position, I think is very definitely supported by the writings of John Stewart Mill, who suggested that society should not control, in many areas, including the control of obscene materials, inasmuch as any kind of control made it less possible for the individual to exercise their freedom, but more importantly, to develop that kind of moral freedom of choice which creates a healthy democratic society- self reliant.

I think Justice Black-Douglas view essentially adopts that position- that each of us in our families in our own personal lives so conduct ourselves with regard and the problems of pornography- the morality of this- that we make our own decisions, and these will obviously be quite various in a heterogenous, pluralistic society such as we inhabit. The opposite view- the extreme opposite, of course- would be a position that had been taken, I think, taken outside of the Court. Very few of the members of the Court itself- The Supreme Court itself- have adopted this, and that is, you know, a total ban. The justification for a total ban as well as justification which the Court- the majority the Court- so far has seemed to have given is that some kind of regulation of obscenity is necessary to protect our moral

conditions- our moral atmosphere, climate- and that as long as large groups in our population will not tolerate this kind of material, these ought not to be permitted and we will then try, by a process of inclusion and exclusion to say certain things can be done and certain things may not. Now, admitting that I'm not following the what presently is the rule that the majority has adopted, nor going quite as far in the liberal direction as Justice Black, Douglas and John Stewart Mill suggest, My suggested compromise would be the following: 1) That in the distribution of obscene material, whatever this may be, and I don't here propose to define it, there should be no

pandering, and by pandering I mean essentially no open display mailing to individuals who do not choose to be exposed to this material, or any such disclosure, forcible exposure, of these materials to those who do not choose to view this. 2) That there should be no sales to minors. This might be qualified with some kind of a reservation that maybe if the parents consent, there might be an exception. This to support parental control over the minor, and this, I'm sure, may be objected to by the liberals. 3) If we continue the present standard under Miller with regard to local communities setting the standard for obscenity then I think the limits that the law should go in this direction in controlling

on the basis of these local standards should be to grant an injunction against material which is found to be obscene. To grant, along with the injunction, payment of costs and attorneys' fees, and the destruction of the offending materials. But beyond that, there should be no criminal penalties imposed, and punishment in terms of incarceration for crimes should be restricted to the first two categories. In other words, the individual who panders or who sells to minors is the only individual who would be subject to incarceration. That, in essence, is the summation of a proposal that might be worked out. I'm sure that this is no panacea; certainly the Court itself has wrestled with any number of these cases' problems.

At dinner-just before dinner we were talking about this issue. I recently ran across a statement by a professor who had counted the 13 cases following Rock before the decision of the Miller case. He claimed there had been 53 or 54 separate opinions handed down by the justices on the Supreme Court bench. The supreme Court of the United States, that is, during that period. All of them taking a variety of views, and so of course it's quite apparent that there is a great difference. Well, let me just briefly review some of the cases which have led up to the present position. The Roth case I have mentioned, which originally set the standard, or up to rather recently shall we say, set the standard of control in the area of

obscenity. The Ross case followed in the line of cases wherein the court had essentially held that obscenity is not within the protection of free speech and may be regulated both by penalties thereafter and also by prior restraint. This is the one exception to the general rule with regard to the first amendment right wherein the Court has pretty much said you can not impose prior restraint. Obscenity is one of those. In the Roth case, the standard of obscenity was still maintained as a nationwide standard and the Court was, of course, bombarded with any number of cases every year in which it was asked to determine the substantive question of whether there was or was not obscenity. And of course, insofar as the issue of obscenity is a first amendment right and the question of whether it is material is or is not obscene

is a finding of fact, whereas ordinarily, those of you who know the process of the law, the reviewing court will not re- examine the finding of a trial court- particularly the finding of jury- In cases involving constitutional fact-finding, the Court has, and it has exercised its right in obscenity cases, to review the actual material. Most of these cases come to us as law professors or as practicing lawyers in a somewhat different posture, of course, than that which they take in the Court itself because we don't- we were not exposed to the actual materials. What the precise facts were, what the nature of the material, the pictures, what have you. Occasionally the court gives us some description of these materials which have been found obscene, but in many cases, it's passed over rather hastily for the Court to

express or direct its attention primarily to the legal issues of whether if it is obscene, the conditions- the circumstances- that exist in that particular case permitted, for instance, to be prohibited whether there was a proper hearing before material was confiscated, whether the individual had an immediate right to appeal the confiscation or the criminal sanctions imposed, and so on and so forth. Very little is said about the actual nature of the material. In any case case, coming back, the the basics of the Roth test, which have been somewhat changed by the newer Miller test, was it applied the national standard, whereas now in the Miller test, you have the local standard, and as I indicated in my summation, I have some serious reservations as to whether that's a move in the appropriate direction; but I nevertheless make a proposal which will continue to

accept that. I think it raises very serious, very difficult, problems to impose on individuals throughout this nation, the possible liability through criminal sanctions, including imprisonment, for mailing material or sending material from a point where these materials are presumably acceptable, make the community standards to a point where they do not. Our constitutional structure, in most of it effects has tried to avoid the control by local standards in virtually every area. This is one area where the reverse is true in and the locale may have an effect actually outside of its bounds, because certainly every individual who prints, publishes or otherwise distributes material which might be found to be obscene, and then

some little town in Arkansas or Kansas and so forth must have this in mind and it's certainly- as regards- chilling- it imposes a serious chilling effect upon dissemination of ideas. Now, of course the question is: are these ideas obscene or not? Usually these individuals who were disseminating writing and so forth do not feel that, based upon the standards that would prevail in their community. So I find that a very complex, very difficult, very controversial aspect of the new Matt Miller rule- the application of the local community standards. The Miller test has maybe clarified somewhat the meaning of "obscene", but, by spelling this out a little more in detail than the Roth test did, relating to patent representations and descriptions of ultimate

sexual acts, normal or perverted. Here in Kansas, under our statute, under the recent case of Labette, our courts sort of ex post facto on the spot added a further- added what they contend- was clarification of the statute, and added the following phrase, which was objected to in the dissent by by Justice Prager. Our court said that masturbation, excretory functions and lewd exhibitions of the genitals, this is not in our statute, and there is, of course, a serious problem on that level as to whether the court, when material is presented for it to determine whether it is or is not obscene, ought to have the right to reform, or revise statutory provisions. Most lawyers will understand that that is a very questionable activity.

The question of what is prurient interest or prurient purposes- the nature of prurient nature- this question remains. The court has said very little as to what it implies or understands by the term "prurient". The rest of the statute, I suppose, has some rather clear expressions of policy. It terminates with the following: that the material lacks serious literary, editorial artistic and other such values. Also, there's an exception made for these kinds of materials where some proper study may be made in appropriate circumstances and there, the court has agreed that maybe we will

permit certain scientific investigation which might involve exposure of sexual materials- explicit sexual materials- which would not be appropriate for distribution to the general public. The general issues, many of those which were decided before obscenity issues, many of which were decided before the decision in the Miller case, it's uncertain whether all of the cases which the Court previously decided have continued validity. Cases involving pandering to homosexual sexual desires- there have been such cases previously- in which the Court had held that material which might not be considered obscene to the average person might be considered obscene in a certain context and that such material could be limited- restricted- and penalties

imposed for the dissemination and distribution of that. The Court has held that nude dancing, for instance, in an establishment where liquor is served, is maybe regulated- may be prohibited under the obscenity statute. Primarily because of their feeling that the liquor- the generalized power to control liquor kinda spills over and and encompasses this kind of activity where nudity itself would not be, under the obscenity law, easily prohibited. It could be in the context of dispensing liquor. And, of course the Court has held that disclosure- distribution- to minors may be restricted, and that has been pretty much retained by both our statute and by the present Court. And under my proposal, there have been

a variety of cases in which the court has said that a wholesale taking over or destroying or confiscating books, magazines, materials of that character would not be permitted because this is an undue restraint on free speech; that where obscene material is to be regulated or controlled, there must be a precise capturing- taking of that particular item- and that the individuals in possession or distributing it should be given an opportunity immediately to have a hearing so that the process of the law would not delay them to the point where the material might become stale or non-commercially valuable. The

pros and cons of the regulation of obscenity I mentioned briefly- previously. The pro argument for control of obscenity is essentially based upon the proposition that this is immoral, this is offensive, the society has a right to protect itself; that if it doesn't it can be analogized as- obscenity can be analogized to other kinds of nuisances, distortions, injuries which society ought not to be exposed to. And that for that reason, to keep a unified social front to keep society from disintegrating, we must necessarily ban these materials. The other side, I think I already mentioned- the John Stuart Mill side, the Douglas side- that which proposes the

approach of individual reliance and individual self sufficiency and rejects the position that others shouldn't determine for any one person how their moral- what their moral standards might be. Into all of this, there is fed the findings, for instance, of the Presidential Commission on Obscenity. We may have a habit every once a while, when we get a controversial issue such as this, to appoint a commission the commission comes back with a report. We hope the report will prove what we expect them to prove- that, for instance, obscenity does increase the crime rate- the sex crime rate. When the commission comes back and tells us the opposite, we immediately forget about that fact. We attack the commission. We say they didn't know what they were talking about, anyway. We're sure the possession and distribution of

obscenity does increase sex crimes and we find attorneys who are prepared to prove that their clients, by watching television- watching Kojak- were induced to go out and kill, and if we believe those things I suppose that's very little that one can do to disabuse our mind of that fact. The other problems with relation- in relation to this, I think certainly there are parents who are concerned about their children and who feel that maybe they can't control the child and that maybe it would be best in this situation for society to take this over and do the controlling. And then there are other parents who are sure that they themselves are probably about ready to be unable to control themselves and want to be sure that anybody else in society who is in the same condition ought to be controlled because they

know how close they are to lack of control. So, there are undoubtedly a great many very strong reasons why individuals support the regulation. I think, really, with that, I will terminate my remarks and open up the panel to questions. [Moderator] Thank you, Mr. Ahrens. [audience applause]. I thought we'd begin by given each panelist a few minutes to respond to Mr. Ahrens' remarks, in general. Mr. Issinghoff, would you like to begin? [Issinghoff] Well, I'd say, first of all, that all 50 states have laws regulating obscenity. In most states, it's a crime, and in all the states it's a civil matter; it's a- something that's prohibited

to some extent. Now, when the Miller case was handed down, to which Mr. Ahrens made reference, all of the porno people, and by that I mean the heavy distributors, publishers and what have you of pornography, panicked, so to speak, because now the one thing that was winning cases for them was no longer available. And by that I mean the Supreme Court set a national standard that something that's too vague- that we can't figure it out- we don't know what it is, we can expect to do it, so we're going to approve a local standard. And by local standard, what the Court meant was, they approved a standard which was to be set by the jurors in the particular community. So, if the were a state case in this county, it would be Sedgwick County. If it were a city case, it would be residents of the city. Now, the people who are into heavy distribution and heavy marketing of pornographic material said,

"We've got to do something and one thing we can do is we can flood the market and the prosecutions cannot handle it.". And this, of course, has happened and it's proven to be true. Now, the suggestion by professor Ahrens does not read "compromise" to me; it reads a cop-out, and I'll tell you why. He's not suggesting that obscenity be controlled, he's suggesting that here's the way to handle it and get away with it. You can promote it if you don't pander it, is what he is suggesting. He's saying you can promote it to adults, so long as you don't promote it to minors. However, it's subject to be enjoined by the courts, which it already is, in a very ineffective manner, I might say. Now, the proposal that he makes

begs the issue entirely, okay? Obscenity is not protected by the courts; it's not protected by the first amendment, and this is a little difficult to understand, but that's the law. Obscenity is not protected, okay, so if its obscene, it's not protected. It doesn't matter if you're promoting it to children, to minors, to animals, to anybody. It's simply not protected. So why should he suggest that it's okay if you don't sell it to minors? That doesn't make sense; it just isn't there. Now, I realize that we should- there's good arguments that we should be free to see what we want to see, we should be free to do what we want to do, and as the good professor said we, we should be free to make our own decisions, but it's not that simple. The Legislature makes decisions for us. City government does it, county government does it, and the federal government does it. And they do it on the basis that

something is proven to be in the best interest of the people, but it's what they think, in their best judgment, is in the best interest of the city, county, or what have you. That happens to be the law, so that, as the law reads, obscenity is a crime, and if it's a crime, it should be treated as a crime, no matter how you define it. Now, there are many, many arguments that would suggest the law should be changed, and it's a possibility that the law someday will be changed, but right now it isn't. And the suggestion that Mr. Ahrens makes is really far out in view of the laws [inaudible]. [Moderator] Thank you, Mr. Issinghoff. Perhaps Mr. Glover would like to proceed at this time with his remarks. [Glover] Well, I would like to respond, somewhat, to that. Promotion of obscenity is about the only

criminal statute that I'm aware of which makes it illegal to- or which punishes the result of an act, rather than the act itself. And I think that anyone who looks at a eight prosecution of pornography, or of obscenity, from start to finish must necessarily conclude that until the jury determines whether the film is obscene, until that point, the defendant in the case doesn't necessarily know whether his act of promoting the film or the material was, in fact, obscene. It does not punish the act, necessarily, so much as it punishes the result of the act. That's probably the wrong word, but secondly, I don't agree with Mr. Issinghoff with respect to his statement

that injunctive relief is an ineffective manner of handling these things. Prior to 1977, the manner of handling these things in this county was by virtue of the civil injunctive statutes and I am not aware of all of those actions; however it seemed to me that there was some sort of a balance reached ultimately between the people filing injunctions against the cinema operators and the cinema operators themselves. Guidelines, if you will, as to what was okay and what was not okay. Anyone who commences the act of prosecuting or enjoining the conduct of promotion of obscenity, in the initial stage of the prosecution

must somehow create a guideline, determined by themselves, as to whether or not a film might be obscene or might be not or whether jury might find it to be so or whether a judge might determine that it ought to be enjoined. It's the same basic mental that goes on in a civil cases as it does in a criminal case; the only difference is that in a civil case, it's handled by a judge without criminal penalties, can be done much more rapidly than a criminal prosecution, and the result- the end result is the destruction of the film if it is, indeed, obscene and life goes on for the movie owner. In a criminal prosecution, on the other hand, you have the threat of or the existence of imprisonment and all of the various

ramifications of that, as well as the time consuming and in rather expensive, I would think, jury trials which must necessarily be conducted because in order to determine a community standard, I think any person offering it in a theater or a bookstore or what have you would rather take the risk that 12 people would have a better idea what community standards are than one particular judge, particularly where the judge is elected by the people in the community. I think the injunctive relief is probably more effective for those reasons. I don't understand exactly what Mr. Issinghoff- unless, his experience, what is admittedly more extensive than mine, can prove that out. [Moderator] Okay, Mr. Joseph. [Joseph] I must say that I have a good deal of

difficulty with the professor's proposal, basically because I don't think it, or any any compromise proposal, addresses the underlying question concerning the regulation of obscenity. If obscenity is wrong, bad, whatever you want to call it, there should be no compromise; it should be eliminated. If there's nothing wrong with it, if it's not bad, if it's acceptable, then it should not be regulated in any way at all with regard to pandering it, with regard to sales to minors, with regard to anybody. the underlying question then as i see it is simply whether we ought to have any obscenity regulation at all. In virtually every law thats passed by the legislature there are two judgments involved. This is particularly true of criminal laws. The first judgment is a judgement concerning harm and certain types of conduct. Most of our criminal statutes deal

with types of conduct that are very obviously harmful- murder, for instance, or robbery. There's no dispute all of that that type of conduct is harmful; it's evident. The second judgment that must be made- and is made- by the legislature is a moral judgment. Virtually every criminal law on the books with, perhaps the exceptions of some minor traffic offenses like illegal parking, carries with it, also, a moral judgment. Murder is immoral. Robbery is immoral. Burglary- theft- are immoral, as well as having obvious harm. The courts have long recognized as perfectly permissible for the people- their elected representatives, the legislature- to enact laws that express the moral judgments of the community, even though harm may not be recognizable- may not be provable empirically. The Supreme Court of the United States, in a

case that was handed down the same day as California v. Miller, I think the case is Paris Adult Theater I vs. Slayton, made that exact statement. The legislatures of the states are perfectly at liberty to deal with moral questions even though it cannot be empirically established that there's harm in some kinds of conduct. And that's what a statute- the statute in Kansas regulating obscenity- is all about. The legislators that we elected made that judgment- that obscenity is morally wrong and therefore should be prohibited. And not just a little bit, not partially but all the way, completely. Until the time comes when we elect legislators who do not believe there is a moral problem with obscenity, then we're going to continue to have obscenity regulation. Complete obscenity regulation. And I say it must be complete. The good professor's proposal

is one that I'm sure everybody in the business of promoting obscenity would be delighted to accept. The third part of the proposal, as I understand it, is to provide for injunctive relief only against all types of obscene material except those which are sold to minors- and there'll be a criminal penalty there- and except for pandering- there will be criminal penalty there. I can do little more than echo what Mr. Issinghoff has already said: injunctive relief to deal with obscenity is just a ludicrous effort. It's useless. It doesn't work at all. And let me explain why. Take a theater that has a run of one week on each of its motion picture films, and let's say it shows nothing but the hardest hardcore films. It doesn't pander- no advertising except little ads in the newspapers- and it doesn't allow people in under the age of 18 years. And they show an obscene film, one of

the hardcore ones, and we promptly file motion for injunctive relief- a petition for injunctive relief well maybe six or eight months down the road will get some kind of a judgment on it in the meantime even if we've go some kind of seizure order you know picked up the film the theater has an absolute riot the law decisions the supreme court come in and say well we want our film back to continue showing it until there is a decision made a final decision the film's obscene and we have to give give them back the film and they go continue to play the film but they wont' keep playing it very long stop at the end of the week and bring out another film then you have the same process- it does nothing absolutely nothing in the end results you may burn a few films but hundreds of thousands of copies of those floating around the same production you don't stop anything at all first then I think the proposal express by the professor fails to address the underlying question. And I have to agree, to that extent, it's a cop-out.

And secondly I don't think it would be effective in doing anything at all, even if we accepted it, in stopping obscenity. [Moderator] Thank you. Mr. Phillips. [Phillips] Yes, I tend to agree with Mr. Joseph that the question of obscenity is a policy question- it's a question of social policy- and whether we're going to restrict or prohibit material which is deemed obscene is essentially a policy question. Ultimately, a political decision. Now the thing that- looking at Professor Ahrens' proposals, it seems that, basically, with respect to pandering, Professor Ahrens is, in effect, adopting a position that was taken by a number of- well, by Earl Warren in a concurring opinion in the Roth case. And in that decision, Chief Justice

Warren takes the position that whether material is obscene depends on the circumstances or the manner in which the material is shown. And he is concerned with the question of pandering. The U.S. Supreme Court, in a case entitled Ginsburg v. United States, in which Mr. Ginsburg, a publisher in New York City was prosecuted in federal court, in New York. The U.S. Supreme Court took the position that Mr. Ginsburg could be prosecuted for obscenity because of the nature of- the nature in which the material was promoted. And if the- the material panders to, supposedly the prurient interest, then the material may be deemed obscene. So, the Court seemed to be taking the position that

whether material is considered obscene depends on the nature of the distribution, type of advertising and not on the material itself. That position has never been fully adopted by the U.S. Supreme Court, but it's a very interesting concept. The pate- purpose, the basis- for excluding material because of the nature of its distribution or advertising is to prevent the commercial exploitation of eroticism. That is its purpose. And that is essentially a policy judgment of the U.S. Supreme Court, although or at least that was the position they took in the Ginsburg case. Now, as I say that is questionable whether that is the position of the majority of the Supreme Court today, But that is a very interesting concept- variable obscenity, it's often called, as distinct from the doctrine of "obscene per se".

So, the question of pandering is a policy that relates to questions of social policy. I must say that Professor Ahrens' proposal with respect to pandering does present some problems. One problem I can see is that distributors- publishers- may intentionally engage in types of advertising or promoting that definitely does not, at least openly or explicitly, pander to so-called "prurient interests". I can think of a novel titled The Story of O, which some of you may have heard of or

seen, and you'll notice on the cover of The Story of O, it's just a blank, white, cover with no pictures or no depictions or any references to sex or eroticism. So, I can see where that presents a problem. But, of course, the Professor Ahrens' proposal- certainly I would prefer his proposal that would limit obscenity to cases where there is pandering because that would at least extend first amendment rights- the right to freedom of speech and freedom of the press- to those who are not involved in the commercial exploitation of eroticism or the business of promoting erotic literature or erotic film. So, that clearly, someone

in his private home who displays a material that is deemed obscene would be protected, although I think such a person is already protected by a U.S. Supreme Court decision in Stanley v. Georgia, where the individual defendant involved was in possession of some material that was deemed obscene and the U.S. Supreme Court ruled in that case that the individual defendant- the homeowner had the right to possess the material and to prosecute him under those circumstances would be a denial of the right to privacy. Now, with respect to the prohibition of erotic material or pornography to minors, I think that is a position which is quite viable for those whose who are seeking

to promote a reform in the area of obscenity law. I have some personal difficulties in accepting any position- or accepting any notion which would place any prohibitions whatsoever on any freedom on- expression or presentation of material of any kind. But, I think that the position- the second part of Professor Ahrens' proposal is the type of proposal that is indeed quite reasonable and is the kind of position that might help to promote a compromise between conflicting groupings and promote the cause of reform in the area of obscenity law. Now, with respect to Professor Ahrens' third position, that of using the injunctive process- or injunctive remedies to promote to regulate obscenity, I am

inclined to agree- or inclined disagree- with my colleague, Mr. Glover, in the sense that I think the use of the injunctive remedy, while- in other words I don't think the- what concerns me about the injunctive remedy is not so much what is effective or not, what concerns me about the injunctive approach is that, here in Sedgwick County, at least, the use of the injunction and injunctive procedure does not permit a defendant to have a jury trial. So that a defendant, in a nuisance abatement action, which is a civil action brought- it's an in rem action brought against the material involve, whether it be a

film or a book or magazine or whatever, which in those types of actions, individuals are also joined as parties, in those type of actions the defendants are denied a jury trial here in Sedgwick County. There's some legal basis for that in that action for an injunction is what we call an action in equity. So, any action in equity where you are seeking action to enforce or to force someone to take action or prohibit certain types of action and in those type of cases, traditionally

there has been no right to a trial by jury. So what concerns me about the injunctive provision is that it denies the right to a jury trial; that means the trial court- namely the judge- in nuisance abatement actions- will make the decision as to whether the material is obscene or not and the judge will determine what are community standards, for example, and what appealed to the prurient interest of the average person in Sedgwick County and what is patently offensive. So, that concerns me very much, that particular provision. Now, however, it would be preferable to criminal prosecution as a practical matter. it would be preferable. [Moderator] Say, Jim, could you wind it up? [Phillips] Sure. [Moderator] Well, I hope this has brought some light. I should, before we open it up a little more broadly, maybe come back to Professor Ahrens and share share- his compromise

proposal seems to have generated a certain amount of reaction, all the way from a cop-out to a fairly defensible proposal. Would you care to defend your compromise? [Ahrens] I think I'm in a position that most compromisers find themselves in, and that suggests that maybe it's a viable compromise, and that is both sides- both of the opposite groups dislike it. [Audience laughter] I understand think there have been some very proper reasons. Stan tells us that you're not going to get the injunction rapidly enough; it's going to drag on and the movie will be in and out. The facts, however are, the cases that have come before the supreme court have all worn the opposite garb. They've all been cases where they've gotten rapid injunctions and held the film off for months during the time that the commercial value of the film has immediately- or rather rapidly- declined. So I think that our County Attorney here, as well as in other areas

in Kansas, are able to obtain a temporary injunction on proper viewing of the film from the judge and then get into the jury trial immediately within a reasonable period of time. I'm inclined to agree with Jim that we ought to eventually make this decision by the jury. I don't conceive, then, that the injunctive process is a great a handicap as Stan Issinghoff suggests. Let me come back to something maybe that I did not emphasize. The comment was made by Mr. Joseph, and I think also by Mr. Issinghoff, that after all obscenity is bad, harmful- the legislature ought to control it because they control other things are harmful. A partial response, I think, was also given by Mr. Phillips that it's not an act. The communication of obscenity is essentially relates to the communication of ideas. So that what is being done here is censorship

of ideas and not of acts themselves. That was why I suggested that it has not been proved that the distribution of obscenity is bad- harmful- that it results in bad acts. Now, putting that in the context of the first amendment, while I clearly recognize the right of the legislature and of any legislature to control bad acts, making first the point that this is not a bad act, there has not been shown to be any bad acts generated as a consequence of the distribution of obscenity. And then, further, putting it in the context of the first amendment, wherein the Court has said that the only things that the courts or legislators- legislatures- of the states may regulate, are those activities which present a clear and present danger of injury. Of the many bad things, things, at least in my estimation, bad things that are said in terms of during the Vietnam War with regard to non-

cooperation and so forth. And our Court has clearly held that the person who attacks the war effort cannot be subject to any penalty, even though you and I might dislike very much what they say, until or unless they begin to say things which are likely to begin to immediately cause a result of force and violence, or disruption- distortion- and a complete or a substantial inability to carry on the war effort. This was essentially, on a somewhat similar area, the case involving the Pentagon Papers. The Court itself said you can't control the dissemination of this sensitive material just because you dislike it- just because President Nixon or others felt that it was dangerous. There was no showing of actual danger in the dissemination made and they refused to permit prohibition or regulation of that kind of communication. There have been very limited areas in which they have controlled and these limited

areas, other than obscenity, have always been essentially those which involve clear and present danger. As Holmes said, yelling "Fire!" in a crowded theater, I think all of us would probably agree, that that kind of a statement, which generates immediate threat of death or injury, that that kind of statement should and could be regulated. [Moderator] Okay, thank you. I'd like to maybe address one question the Miller case seems to pose, and maybe I'm not reading this case correctly, but as I did read it, it is not necessarily local community, but as I recall in that case, they said the State of California was the community. Is that correct? [Ahrens] I think it's rather ambiguous and there have been comments with regard to that as to whether that relates to the state or to the community, let's say, Wichita. I understand it to refer to the local community. [Moderator] Is that the way the prosecution reads it?

[Joseph] No. I think that's essentially, at this point, a question that's not completely settled. I know in a federal prosecution, the community in Kansas- the community is the District of Kansas. It's not that if something was shown here in Wichita, it would not be Sedgwick County be the community, it would be the State of Kansas would be the community. I think the Supreme Court has talked about that in one or two cases since Miller without saying anything definitively, but the question of what constitutes the community itself is even open. It may well be decided some day that the community has something to do with what makes a community a community. That- I hope it doesn't come to that. [laughter] [Moderator] You're saying that's a case where in city court, it could be the city limits that would define the community; in District Court in Sedgwick County or in federal court it could be the whole state. [Joseph] Yes, I think that's the position most courts are taking now except a few of the state courts are, in a local district, dealing with the entire state, but most of them are just covering the jurisdiction of that

court as being the community. [Moderator] Okay. [Joseph] That is, basically as the area from which the jurors are drawn. [Moderator] Do you foresee a possibility that "community" could be further limited? In other words there be sub-communities within a city? [Joseph] You know, I read a very interesting article in the American Bar Association journal- it came out last time- by a man whose name escapes me right now- but he does statistical research to assist attorneys and prosecutions in defensive cases- I think he worked on the Mitchell case in New York where he surveyed the area and got studies of people to help the defense attorneys to pick the jurors. And he's done some obscenity work, too. And he concluded that in some communities, there are very definitely sub- communities, even in communities the size of Wichita. And we may have a study done like this to find out where these people are, but there are some areas in cities where views are just almost unanimous against obscenity or for obscenity; against

strict enforcement of law, or not strict enforcement, you know, any number of subjects. Economically, talking socially, there are many sub-communities. I don't think the law will ever go to that; it's impractical. It just can't be dealt with. A city would be about the smallest size community, I think, that could actually be dealt with. [Moderator] Mr. Glover or Phillips, what problems do you see with the community concept in the Miller case from a defense point of view? [Glover] Well, I don't know how, if you're going to be going to make illegitimate the promotion of obscenity. I think that the very essence of whether it's obscene or not depends upon who considers the question and it being it within a community where it's distributed, it would necessarily have to involve some sort of community standard. I think that if anyone's going to deal with it, I think they must deal with it

on that level, otherwise they would, it would be impossible to define a national community or even a statewide community. I would think- [Moderator] Do you think this was an improvement by the Supreme Court to move from a national standard to a local standard? [Glover] I would think so it's easier to deal with it, anyway, at least in terms of the prosecution of it, as far as the defense goes. [Moderator] From the prosecutor's point of view? [Glover] Whether the jury likes it or not is really the question; they're not going to consider whether or not that people in New York City or Chicago might like it; they can't comprehend that or deal with it effectively in a jury deliberations. [Moderator] I'd like to, maybe, come back to you, Mr. Issinghoff. Do you want to respond? [Issinghoff] Well, very briefly, in the Miller case, the Supreme Court did not say that a national standard is no good, a state standard is no good, a local community standard is no good. What the Supreme Court did, is it approved a local standard

and the Supreme Court in effect said we can no more dictate to you what standard you should use than anybody else, but in this case you used the state standard; we approve that. You see? So the state standard now is much much different than it was in Roth- subsequent and prior to Roth and before Miller. It's a simple matter to pick a community and pick a jury and try the case. A big issue is not what the community is. That's not a big issue; that's not a big deal. The big deal, of course is: what is the standard? I agree with Mr. Phillips wholeheartedly; it's tougher, to boot. I know, for example, that at least the president or the chairman of the ACLU was quoted as saying that as far as the ACLU is concerned, there is no such thing is obscenity. Well, this person that is quoted as saying that, if she said it,

is a member of the community. And you stack that up against a a person who believes that, you know, anything is obscene, and how can you get a standard? It's tough to do.