The two cases also encouraged Brennan. The conference seemed to be creeping toward a consensus. Even Douglas and Rehnquist, polar opposites, were moving toward the center.
On Friday, May
19,
Burger finally circulated his first memo on the obscenity cases argued in January. To the astonishment of most of the justices, the twenty-one-page opinion set out once more to redefine obscenity, rather than extend the
Stanley
privacy doctrine.
First, Burger encouraged the lower courts to be more flexible, to apply local, not national, standards, in defining what was obscene. He quoted an Earl Warren opinion
(Jacobellis
v.
Ohio)
opposing national standards. He would accept Warren's analysis: "In a society that prides itself—and properly so—in supporting pluralism and diversity there is no sound reason for the law to say that what is found tolerable in the portrayal of sexual activities in Los Angeles or Las Vegas must be accepted in Maine and Vermont."
Local juries representing the "conscience of the community," Burger wrote, could determine what was acceptable for their communities. Anyone who did not agree with him, Burger said, did not believe in the American jury system. The Court's general definition of obscenity should be loosened to allow more prosecutions to succeed, he said. "The statement that material should be 'utterly' without redeeming social value is clearly too sweeping . . . Courts have seen patently spurious inserts to season filth with a dash of the race problem, foreign policy, or the evils of
w
ar profiteering.'"
"Utterly without redeeming social value" was a problem, the Chief said, because he had "never been sure just what this phrase means, but neither—very likely—are most lay jurors so that we could disregard it without great risk."
Instead, Burger wrote, works henceforth should have "literary, artistic, political, or social value" to avoid being declared obscene. Publishers would have to show that they met this standard. Prosecutors would not have to show that they didn't. That would shift the burden of proof, and make prosecutions easier.
To deal with the most "egregious abuse" of obscenity laws by local prosecutors and judges, the Chief proposed that the Court continue to review them individually and
Redrup
them.
"In the long run this Court cannot act as an efficient Super Censor, and the sooner we leave the problem to the states the better off we and the public will be."
Brennan carefully searched Burger's draft for a sign that he was still open to the
Stanley
privacy approach. The Chief had put emphasis on "public activities with respect to obscene materials," had described pornography as an "intolerable nuisance
...
to a community," and had cited the
Stanley
case. If taken literally, Burger seemed to distinguish between "public" and "private" displays of obscenity, and to view the problem as merely controlling dissemination. That fit Brenn
an's own view. "Boys, do you th
ink the Chief really means this?" he asked his clerks.
The clerks were skeptical of the Chiefs motives and logic. He was watering down Brennan's definition of obscenity to allow easier prosecution of pornographers. But Brennan felt that if the Chief were willing to extend the
Stanley
privacy logic, it really didn't matter if he wanted to rewrite the definition. Consenting adults would still be allowed to see and read what they wanted, regardless of whether it was obscene.
Brennan thought he might push the Chief a bit further. He had already had his clerks prepare a draft opinion that partly renounced his old approach and, instead, extended the Stanley logic. But to send the draft around just now might be too provocative; clearly, it had been prepared beforehand. Worse, the Chief would see it as a blatant attempt to steal the majority opinion from him. So Brennan decided to alter his draft and try to persuade Burger that it was close enough to his own view to be incorporated into his opinion. The Chiefs work was a rough draft, almost conversational in tone. Certainly he would not object to a few suggestions.
However, the
timing
was important. There were six weeks before the term was to end. If something could be circulated in the second week of June, there would be no time for the Chief to rewrite his own opinion in response. Unless he adopted much of Brennan's memo as his own, he would take the chance that Brennan would get a majority.
In three weeks Brennan was ready with his memo. It began informally, but the
37
-page document was structured as a majority opinion. Brennan admitted that he had been wrong in
1957,
wrong in later attempts to define obscenity, wrong not to vote for
Stanley,
and wrong not to extend it
Brennan was willing, however, to retain a definition of obscenity for public places in order to protect children and
unwilling
viewers. State laws could prohibit any unsolicited example of pornography, or require that it be kept out of sight or in an area prominently labeled "adult materials." Flashy, explicit signs would have to come down. Still shots of sexual conduct from obscene movies would have to be taken off theater displays. Live sex shows in public could be banned.
Brennan had tailored his draft to capture at least the ground the Chief seemed willing to give. Books without pictures, and mere nudity, could not be banned.
Douglas was pleased to see Brennan's confession, but it was too little too late. He continued to hammer at him to go all the way: nothing could be banned. If Brennan retained a definition of obscenity—even to protect children and unwilling adults—the courts could some day use it to censor materials for consenting adults, Douglas argued.
Brennan, insisting that the Chief was approachable, circulated his draft on Tuesday, June
13.
The next day Burger circulated his response to Brennan's draft to the whole conference. This was record time for him. "I have your very interesting memo on the broad problem of the above case," Burger wrote. "In the short time you have had I marvel at how you have done this job. We need more exchanges of this kind to develop our thinking."
In view of "the lateness of the season," the Chief agreed, the Court had been unable to come up with a definition that will separate protected from non
-
protected "sex material."
I think I agree that people in the commercial world are uncertain of the standards. We are, and they merely reflect our uncertainty. I confess I do not see it as a threat to genuine First Amendment values to have commercial porno-peddlers feel some unease. For me the First Amendment was made to protect commerce in
ideas,
but even at that I would go a long way concerning
ideas
on the subject that has had a high place in the human animal's consciousness for several thousand years. In short, a little "chill" will do some of the "pornos" no great harm and it might be good for the country.
Extraordinary, thought Brennan. How could even the Chief feel that the Court could act on the basis of what an individual thought was "good for the country"?
Even accepting that the "Redrup technique" compounds uncertainty, I prefer it to a new, uncharted swamp.
So the Chief was willing to leave them in the business of reviewing, one by one, the hundreds of cases that came to them each year. But Brennan found other parts of the Chiefs memo to him somewhat more encouraging:
I strongly agree with you that there are some obscene materials not protected by the Constitution. [He also agreed that governments could] stop pandering and touting by mail or otherwise with brochures etc. that offend.
This had long been Brennan's primary concern.
I agree (if it is your view) that all public display that goes beyond mere nudity that depicts or suggests conduct can be barred. I think if it can be barred on
14th
and Constitution Avenue [in public], it can be barred in a saloon and probably theatre.
In general I agree that traffic via words in print is in a different category from pictures, movies or live shows.
Burger also shared Brennan's concern about protecting children from pornography. "I consider the state free to make a serious felony out of any conduct that permits access of minors to non
-
protected material," he said. Most importantly, he would be willing to extend the
Stanley
logic to permit importing pornography for private use.
Brennan was still partially encouraged but wondered what the Chief had in mind. Surely his draft was not ready for publication. He went to see Burger to talk over the situation.
The next Monday, June
19,
the Chief sent around a simple note. "In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion. . . . We will discuss this at the June
22
Conference."
Brennan reassessed the situation. White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene. If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.
To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.
One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography. The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensiv
e advertising outside, and both
of which refused to admit juveniles. If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chiefs redefinition of obscenity.
The conference on June
22
readily agreed with Brennan's suggestion to take the additional cases* and to argue them early in the next term. They also put over the three cases before them. They now had a package of eight cases that would present virtually every unanswered question in obscenity law.
Brennan could see that he had his work cut out for him in the coming year. He summoned one of Douglas's clerks and br
iefed him on what to pass along
to Douglas in Goose Prairie: everything was fine; they had granted the new cases; Brennan was confident they would prevail in the fall.
On Powell's first day at the Court, Marshall had paid a courtesy call on his new colleague. He found Powell standing in his clerks' small office. The two men—Marshall carrying
250
pounds on a 6-foot-1
frame and Powell a skeletal 6-foot-3—stood uncomfortably for a moment.
"Do you have your capital punishment opinion written yet?" Marshall asked jovially, slapping Powell lightly on the back.
* Kaplan
v.
California; Paris Adult Theatre
v.
Slaton; Alexander
V.
Virginia.
Powell smiled tentatively. Was it possible that he was expected to have mastered such a difficult and consequential area of the law so rapidly? Had the others completed their opinions, even before the Court had considered the cases or heard oral argument?
"No, I haven't had time to consider that yet," he replied.
"Well, I wish you luck," Marshall said. "My wife Cissy is after me, and thinks we should string them all up. But," he added, patting a wad of papers in the inside pocket of his coat, "you'll see what I've written."
He slipped out the door with a chuckle.
Beneath the surface humor, Marshall was very concerned. The Court had ruled only on procedural questions in capital punishment cases. In just over a week, it was going to address the central question of whether the death penalty was among the "cruel and unusual punishments" prohibited by the Eighth Amendment. There were only five cases to be argued* before the Court, but the decisions could determine the fate of about
700
prisoners across the country who were waiting on death row.
Marshall was opposed to the death penalty in any form. He considered it the most conspicuous example of the unfairness of the criminal justice system. It almost seemed a penalty designed for p
oor minorities and the underedu
cated. The rich and well-educated were rarely sentenced to death. They hired fancy lawyers. With his experience in the South, and a year spent during the Korean War investigating the cases of black GIs sentenced to death, Marshall knew very well how the system worked. The death penalty was the ultimate form of racial discrimination.