Three black players were added—Jackie Robinson, Roy Campanella, and Satchel Paige.
Marshall decided to switch anyhow and write his own opinion in Flood's favor. The Court was now split
4
to
4,
and word circulated that White was considering following Marshall. That would give him a majority.
White owed a great deal to professional sports. His career in football had paid for a first-rate law school education. He remembered the years he had spent touring the country playing football. In those days, teams were real teams, brotherhoods of young men. It was different now. There were too many prima donnas, concerned only with their own statistics. White had difficulty feeling sorry for Curt Flood, who had turned down a
$100,000
annual salary.
The antitrust issues were not easy in the case. White thought that if the federal laws did not apply, state antitrust laws might. His clerks used his hesitation to negotiate small changes in the Marshall opinion. White would probably join if the changes were made, one clerk offered.
When Marshall balked at a change that seemed trivial, his clerk protested that it was necessary to get White's vote.
"Says who?" Marshall asked. A White clerk, he was told.
"He'll never join," Marshall responded.
Finally, White indicated he would stay with Blackmun's opinion against Flood. But he flatly refused to join the section listing the baseball greats.
Blackmun ignored the insult. He still had only four votes. If the tie stood, no opinion would be published.
At the end of May, Powell's clerks made a last-ditch effort to get him back in the case. They knew that he favored Flood's position. Since he would be voting against the major leagues, he could not be accused of a conflict of interest, his clerks argued. He would only be hurting his own interests. It was in fact possible that he could be accused of conflict if he did not vote.
No, Powell told them. He was out and he would stay out.
The Court was still deadlocked in the last half of May. After all his work, it seemed that Blackmun was to be deprived of his opinion.
The Chief's Saturday visit to Blackmun, and Blackmun's subsequent withdrawal of the abortion opinion, had spawned vicious rumors among the clerks of vote trading. Then, as the term drew to a close, Burger announced that he would switch to the Blackmun opinion in the Flood case, giving him the fifth vote. He too, however, initially declined to join the first section.
After the opinion had come down, a clerk asked Blackmun why he hadn't included Mel Ott, the famous New York Giants right fielder on his list of baseball greats.
Blackmun insisted that he had included Ott.
The clerk said that the name was not in the printed opinion.
Blackmun said he would never forgive himself.
Earlier in the term, White's clerks had quickly fallen into the routine of Court life. Metal library carts full of cert petitions rolled into the chambers each week, and, as the term progressed, the time needed for processing each petition dropped from hours to minutes. But the improved pace did little to reduce the boredom of sifting through endless formalized pleas. Only the obscenity cases provided a break in the monotony. Many of these petitions were accompanied by the exhibits from the original trials—full-length motion pictures, tiny reels of peep-show film, boxes of magazines, books, an occasional set of glossy photos or playing cards. The exhibits circulated among the chambers for perusal by clerks and Justices.
As one of White's clerks went through the exhibits in two cases
(Hartstein
v.
Missouri
and
Wiener
v.
California)
, his interest went beyond mere titillation.
In
1967,
the Court had given up a decade-long effort to define obscenity, and acknowledged the subjectivity of the task. It had declared
(Redrup
v.
New York)
that any material held not to be obscene by a majority of the Justices, regardless of their personal definitions of obscenity, was protected by the First Amendment. The Court had since reversed more than two dozen obscenity convictions under the
Redrup
decision.
In the pending cases, White's clerk checked to see whether the material violated his boss's personal definition of hard-core pornography. It was a definition that White had never written into an opinion—no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity. His clerk noted also that there was no evidence that the materials had been shown to minors or adults who had not willingly sought out the material. So he typed out his recommendation: "Reverse on Redrup." The lower court decision holding the materials obscene would be reversed without an opinion er oral argument. The Court would not further confuse the lower courts by expressing the Justices' lack of agreement. The clerk noted that White need not view the exhibits. They were clearly not obscene.
White sat at his oversized, glass-topped partners' desk reviewing his clerk's recommendations. When he came to the obscenity cases—and the recommendation that he skip viewing the exhibits—White bellowed, "Are you kidding?" He got up and went into the clerk's office, standing next to the chair reserved for him there, his feet apart as if he were ready for a physical challenge. Above the chair there were, two Daumier prints of a famous Paris obscenity trial; White had bought them in Europe. One portrayed
a
woman flashing her breasts at a panel of judges, who reeled back in horror. White had given
a
third print to Brennan, who had put it in a closet.
White's clerks often urged him to adopt the absolutist First Amendment position of Black and Douglas. They would hold that any exceptions to the First Amendment put the Court on a "slippery slope," where one exception justified another, and then another, until there would be little, if anything, left of the First Amendment.
As often as they brought it up, White insisted he would have none of it. "Don't give me that 'slippery slope' argument again," he would say. One step did not necessarily lead to another, reasonable lines could be drawn. "The important thing is to know when and how to stop the real censorship of ideas."
"Send in the exhibits," White now commanded the clerk. He felt obliged to view them before voting to reverse the lower courts.
The exhibits were no worse than the usual collection of pornography that found its way to the Court week after week. White flipped through the material. He quickly saw enough. White did not loathe pornography, as Blackmun and Burger did. It was simply that these were things for his son's eyes, perhaps, but never for his wife's or daughter's. He was bothered less by the material than by its ready availability in every major city across the country.
White also wanted an end to the waste of time spent in reviewing and "Redrupping" individual cases. He decided for the first time not to give Brennan, Stewart, Marshall and Douglas a fifth vote for reversing the obscenity convictions in these two pending cases. He was going to join the Chief and Blackmun in a dissent. He wanted to handle the obscenity cases differently, though he wasn't sure how.
White's move irked Brennan. Of course White was exasperated by the endless obscenity cases. So were all the Justices. "I'm sick and tired of seeing this goddamn shit," Brennan complained. But what choice did they have?
Brennan realized that the
Redrup
approach forced the lower courts to go back each time to the original exhibits to try to deduce what the Court had most recently ruled. Most of them had gotten the point. The Court was not inclined to allow the lower courts to deem obscene anything but the most explicit hard-core pornography.
Brennan was not ready to buy Douglas's absolutist position that nothing could be banned. But neither did he feel that the Court could sit back and let local bluenoses censor whatever they thought would stain the soul. The
Redrup
procedure was better th
an nothing—as long as he had the votes.
Brennan, like White, had his own private definition of obscenity: no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the "limp dick" standard. Oral sex was tolerable if there was no erection. In these two cases, the material passed Brennan's test.
Stewart was another vote to
Redrup.
Years before
(Jacobellis
v.
Ohio,
1964),
Stewart had written that only "hard-core" pornography could be banned, but conceded the subjective nature of any definition: "I shall not today attempt to further define the kind of materials I understand to be embraced within that shorthand definition; and perhaps I could never succeed in doing so," Stewart had said. "But I know it when
I
see it."
He had seen it during World War
II,
when he served as
a
Navy lieutenant. In Casablanca, as watch officer for his ship, he had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court He called it his "Casablanca Test."
Marshall, as usual more amused than shocked by the exhibits in the pending obscenity cases, was also
a
vote to
Redrup.
And Douglas, of course, was
a
fourth vote.
Since Black's departure, Douglas was the only First Amendment absolutist on the Court. He and Black had been certain that it was impossible to define obscenity. Any laws banning it, therefore, were doomed to be vague and unconstitutional. There could never be an obscenity law clear enough to meet the constitutional requirement that
a
person must know beforehand whether he is acting illegally.
The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place. And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted
a
definition, was Bill Brennan. In a
1957
case
(Roth
v.
United States),
Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned.
Douglas knew that Brennan had developed his definitions to protect serious literary works—James Joyce's
Ulysses,
William Faulkner's
Sanctuary,
Erskine Caldwell's
God's Little Acre
—from overzealous prosecutors and judges. Under Brennan's definition, material was obscene if, to "the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." But lower courts continued to ban material Brennan thought was obviously not obscene. For a plurality, in a
1966
opinion
(Memoirs of a Woman of Pleasure [Fanny Hill]
v.
Massachusetts),
Brennan had next tried a formulation holding that material had to be "utterly without redeeming social value" before it could be banned. This placed the burden on prosecutors to prove that nothing in a work redeemed it. Pornographers then took to citing medical reports or throwing in lines from Shakespeare to protect the product.
In Douglas's view, these efforts by the Court to define obscenity were absurd. The only remotely rational development, he felt, had occurred in a
1969
case
(Stanley
v.
Georgia)
when Marshall had said obscenity was largely a personal privacy question. He had written, "If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he must watch."
As defense lawyers attempted to expand the logic of
Stanley,
hundreds of cases began Working their way up to the Court If there was a constitutional right to possess obscene material in one's home, then there was a right to buy it. If there was a right to buy it, there was a right to sell it. If there was a right to sell it, there was a right to distribute it. If there was a right to distribute it, then there must be a constitutional right to write, photograph or film it. Or so their logic went.
If the privacy logic could be extended all the way, the lawyers argued, the distinction between obscene and not obscene would become largely irrelevant. There would be no need to define obscenity as long as people had the right to see and read what they wished. But Brennan had hesitated over
Stanley,
and during the previous two terms had refused to provide the liberals a crucial fifth vote to extend the logic. Now, with White shifting and two new
Nixon Justices taking their seats, Douglas feared that a majority might modify Brennan's old definitions and declare a war on pornography—and soon on free speech.