Thy Neighbor's Wife (53 page)

“Do you suggest, Mr. Rosenwein,” asked Chief Justice Burger, “in order to make out a case, the handler of the material must acknowledge that it’s obscene before he exposes it or distributes it?”

“My contention,” Rosenwein replied, “is simply this: that one has to prove beyond a reasonable doubt that he
knew
the contents; and, with that knowledge, intentionally disseminated the material with a specific intent to appeal to a prurient interest. That, I think, is a burden that is upon prosecution in an obscenity prosecution….”

Listening nearby, at the government’s table, sat Hamling’s accuser—a bearded, youthful Yale man from the Solicitor General’s office named Allan Tuttle. Having trimmed his dark beard earlier on this day to a judicial length, and having rehearsed many times in private the argument that he would momentarily deliver, Tut
tle felt both personally and professionally prepared; and adhering to a tradition followed by all federal government lawyers when appearing before the justices of the Supreme Court, Tuttle was formally attired, wearing a black cutaway coat, gray striped trousers, a black vest, a white shirt, and a silver silk tie. Though he was not personally offended by sexually explicit pictures, and untimidly perused the pages of
Penthouse
when in his favorite Washington barbershop, Tuttle believed that Handling’s brochure was excessively graphic and legally obscene. If Hamling had only included a few excerpts from the text of the Presidential Report, the brochure might have presumed to at least a modicum of serious purpose; and while Stanley Fleishman’s rebuttal to Tuttle’s forthcoming remarks would be the last words heard in today’s oral argument, Tuttle could not imagine what Fleishman could say in defense of such pictures as the brochure’s nude Godiva mouthing the penis of her horse.

When Chief Justice Burger finally nodded toward Allan Tuttle after Rosenwein had sat down, Tuttle lost no time in challenging the worthiness of the brochure. “Mr. Chief Justice, may it please the Court…” Tuttle began. “I invite the Court to consider the material which is here for review. The brochure consists of a single page: On one side is a photograph of the cover of the Illustrated Report, together with a coupon indicating where copies can be obtained; the other side consists entirely of a collage of photographs showing a variety of sexual scenes, including group-sex scenes, heterosexual and homosexual intercourse, sodomy, bestiality, and masturbation. This is hard-core pornography by
any
definition, and judged by the standards of
any
community.

“Petitioners nonetheless say that their conviction should be reversed,” Tuttle went on. “They argue that
Miller
teaches us that the federal obscenity statutes were unconstitutionally vague, at least until
Miller
was decided…[but] as I read
Miller
, the Court found that the
Roth
definition, or some aspects of the
Roth
definition—for instance, the ‘utterly without redeeming social value’ test—was constitutionally unnecessary, and difficult to prove, if not impossible to prove; and the Court formulated a
different formulation. But I don’t take the Court to be saying, when it decided that
Miller
would be the standard for judging obscenity in the future, that all the prior convictions, using the
Roth
definition, were unconstitutional, or unconstitutionally obtained, or that the formulation under which they were obtained made the convictions void….”

“Then those cases went on to say,” interjected Justice Potter Stewart, “that in order not to be deficient constitutionally, the statutes had to be
very
specific.”

“Yes, Mr. Justice, I was going to say that…the requirement in
Miller
that the obscenity statutes be limited to depictions of sexual conduct specifically described in applicable state law…[and] it says if and when a serious doubt is raised as to the vagueness of the federal statutes, we are prepared to construe them as limited to the examples of hard-core sexual conduct. And in point of fact…”

“That can’t very well be done
after
a conviction, can it?” Justice Stewart said.

Tuttle and Stewart debated further; and then Tuttle spoke without interruption for several minutes, until Justice Stewart began once more to ask questions, most of which dealt with the problem of how various and sundry communities could fairly interpret and enforce the federal postal law that had ensnared Hamling. “
Miller
was dealing with a state law,” Stewart reminded Tuttle, “which had no wider scope than state-wide. But here [in
Hamling
] we are dealing with a federal law [the Comstock Act],” and Stewart added that now this ancient federal postal law had countless local interpretations across the land. It would be as if, Stewart suggested, “somebody in the Solicitor General’s office stood up and told us that the Internal Revenue Code was to have a different meaning” in numerous different parts of the nation.

But, Tuttle replied, “the reason why the Court returned to temporary community standards in a state case [
Miller
v.
California
] was because it found that the juries’ efforts to articulate and grasp a national standard had not been wholly successful. If
that’s true, it’s equally true with respect to a jury attempting to judge a federal obscenity prosecution….”

“Does the First Amendment have nothing to do with the national standards?” asked Justice Douglas.

“Of course,” Tuttle said, “the Court, construing the First Amendment, developed a requirement of a national standard. All I’m saying [with regard to Comstock’s federal postal restrictions]…was that Congress, I don’t think had in mind, either a local or a national standard—they had in mind obscene material as a jury would find it—and that again is the lesson of
Miller
.”

“I suppose it’s true,” Chief Justice Burger added in elaboration, “that running an unlicensed still in Kentucky, or some of the other states, might get a different reaction from jurors than it would in yet other states, where it is not so much a way of life. Yet, the statute would be the same statute, would it not?”

“Yes,” Tuttle answered, “there are a number of crimes, in fact I would say in most instances, where the crime is…”

“Well,” said Justice Thurgood Marshall, “could you say that in the state of New York a still is not a still?” Tuttle was confused by the question. “It’s either a still or it’s
not
a still!” Marshall cried out impatiently, surprising Tuttle. “It’s the same still in New York that it is in Kentucky!”

“I quite agree, Mr. Justice Marshall,” Tuttle said, “and that is why I said in those instances…”

“But in this,” Marshall continued, “you could have
Carnal Knowledge
, a still in Kentucky, and not in New York…”

“
Carnal Knowledge
maybe exceeds the limits of candor of Albany, Georgia,” Tuttle said, “and
Carnal Knowledge
may in fact be found to appeal to the prurient interest of the average person in Albany, Georgia, but it still lies with this Court…”

“Mr. Tuttle,” Marshall interrupted, more softly, “my only quarrel is: I thought you were inferring that
Miller
changed the [Comstock] statute’s determination.”

“I didn’t think
Miller
was simply, if you will, a determination.”

“Let me ask you—what did
Miller
do to this statute?”

“
Miller
, the statute speaks only of obscene material…”

“Right,” said Marshall.

“The Court had since
Roth
undertaken to give content to what that means,” Tuttle continued, “and in each of these cases the Court’s formulation has been a slightly different formulation.
Miller
gave a formulation, which has been recited today, and
Miller
said that with respect to the community standards element, reference should be had to the contemporary community standards of the forum community.”

“Would you be able to advise a client whether to plead guilty?” Justice Douglas asked, adding: “…is [the statute] sufficiently clear, or is it so obscure that it is open to guesswork?”

“I think,” Tuttle replied, “that it is quite evident, Mr. Justice, that the concept of obscenity does not lend itself to the precise kinds of measurement that many other elements of criminal statutes do….”

“Under this federal statute,” Douglas theorized, “…the act of mailing from New York could be innocent, but the act of receiving and selling from California could be a crime—is that right?”

“It’s conceivable,” said Tuttle. “We would be speculating to know, but it is conceivable [that] the judgment of criminality would turn on the place in which the matter is disseminated and the crime is committed.”

“Mr. Tuttle,” Chief Justice Burger added, as if wanting to help clarify, if not justify, the fickled character of obscenity laws, “the Court over the period of the last fifteen years has had at least three different definitions—there’s nothing new about altering these definitions, is there?…Coming back from
Roth
to
Jacobellis
to the other cases down the line, it’s been a revolution…”

“It’s been a continuing effort,” Tuttle agreed, “to attempt to formulate manageable standards…”

“Mr. Tuttle,” asked Justice Byron White, “you suggested that before
Miller
there was a third requirement that material be ‘utterly without redeeming social value’—what cases do you rely on for that?”

“I would rely on
Memoirs
v.
Massachusetts
.”

“How many votes did that test have there?”

“That test had three votes.”

“Well, under what case did it ever have five?”

“…Excuse me,” Tuttle corrected himself, “
Memoirs
is the case.”

Justice White frowned slightly, seeming displeased with Tuttle’s answer. While it was true that five justices during the mid-1960s had allowed the legalization of
Fanny Hill
in the
Memoirs
case, it was also true that only three justices could agree on the precise language to be used in that splintered opinion—and even now, eight years later, Justice White (who had opposed the book) seemed rankled by the outcome; and in a clear, hard voice he reminded Tuttle that
Memoirs
“did not have five votes.”

“The reason why I think there were five votes,” Tuttle persisted in explaining, as White’s lips tightened, “is that you had
two
members of the Court who would have found the publication constitutionally protected under
any
circumstances, and you had
three
members of the Court who would have found it constitutionally protected unless it was shown to be ‘utterly without redeeming social value.’…”

“But that fact remains,” White said, looking down at Tuttle, “at
no
time did five members of the Court subscribe to that test.” As Tuttle remained silent, Stanley Fleishman watched with interest the emergence of Justice White’s unrelenting nature. Earlier, Fleishman had thought that he had a fair chance of converting White to Hamling’s side, but now Fleishman saw his only hope in Justice Lewis Powell, the lean, quiescent Virginian who sat on the extreme left, stroking with his thin fingers his pallid, pointed chin. Meanwhile the loquacious Allan Tuttle, having wisely terminated his debate with White by conceding the accuracy of White’s remembrance of
Memoirs
, continued with his prepared speech, ignoring momentarily Justice William Brennan’s efforts to interrupt him.

“Please pause, Mr. Tuttle,” Justice Brennan said finally. Tuttle turned toward the scowling, round-faced septuagenarian, the author of the controvertible and now moribund
Memoirs
opinion,
and Tuttle heard Brennan ask: “Does all of this discussion suggest that maybe even
Miller
isn’t the last word in this very troubled area?”

“
Miller
gave us…”

“That’s
not
my question,” Brennan cut in; “my question is whether you think
Miller
is necessarily the last word in this area?”

“
Miller
of course is not the last word,” Tuttle said, “because we are here today, and we are here today with some problems. But our problems relate to the application of
Miller
. We are not here to question the standards of obscenity articulated in
Miller
, but we are merely attempting to determine whether a pre-
Miller
conviction can be sustained under that definition.” Tuttle waited for a reaction; and when there was none, he continued: “Now, we don’t believe that the criticism of local standards which is contained in
Miller
v.
California
necessarily applies that all federal obscenity prosecutions antedating
Miller
have to be voided. And we don’t think the Courts had any such idea in mind. In the first place there have been, since
Miller
, a large number of cases which have been remanded to Courts of Appeal for reconsideration in the light of
Miller
. And these are federal cases where the jury was charged to use the national standard, as was the jury here [in the San Diego trial involving Hamling]. And we believe that if the use of a national standard had made the statute unconstitutionally vague, prior to
Miller
, we would have had reversals, and not remands….”

Seeing the small light flashing on the podium, signaling that his time was nearly up, Tuttle raised his voice as he concluded: “…and if there is any question that the defendant was incorrectly tried under a national standard, we would say it was harmless error because [Hamling’s] material is obscene under
any
standard, and there is no community whose limits of candor are not exceeded by the petitioner’s publication.” Pausing, he said, “Thank you,” and turned toward his seat.

Chief Justice Burger nodded, then turned to his right and said: “Mr. Fleishman.”