The clerk working on these cases with the Chief was uniquely compatible with him. He had studied at Oxford for three years after college and had married the former secretary to Burger's friend from England, Lord Chief Justice John Widgery. Only twenty-seven, the clerk looked years older with the balding, softened appearance of a middle-aged attorney. More importantly, this clerk was a talented translator of the Chiefs visceral reactions into reasoned legal positions.
Starting with the Chief's memo from the previous year, the clerk sifted through the available literature, looking for legally sound and intellectually sophisticated reasoning to support Burger's views on censorship and obscenity. Burger recommended that he read an article that his chief clerk had found the previous year, written by conservative Yale Law professor Alexander Bickel.*
Bickel agreed with the
Stanley
decision, that willing viewers should be left to watch what they wanted in the privacy of their homes. But he turned the logic around to argue that the privacy of the home should not be extended. If it were, there would be an increased risk of invading the privacy of others.
Burger suggested that a passage from the Bickel article be used. "A man may be entitled to read an obscene book in his room, or expose himself indecently there, or masturbate, or flog himself, if that is possible, or what have you."
The Chief proposed that the sentence be cut after the words "indecently there."
"We should protect his privacy," Bickel continued. "But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places— discreet, if you will, but accessible to all—with others who
* The Public Interest,
No.
22,
Winter 1971; On Pornography, pp.
25-28.
share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies."
The Chief liked the last clause. He wanted it emphasized with italics. The article stated better than anything else Burger had read why the privacy argument could not be extended wholesale. He circulated it to his colleagues.
In November, the obscenity cases put over from the term before were reargued. Burton Marks, a flashy criminal attorney, lectured the Court on the realities of pornography. "We are back again before this court
...
to discuss
...
the continuing saga of life in the pits, or what goes on in the lower courts, because we don't know what, actually, this Court is saying with respect to the pornographer."
Marks explained that movies often declared obscene were advertised every day in
The Washington Post,
and were showing regularly in local theaters. He argued that his clients were businessmen. "Maybe they're in a dirty business that you don't like, but, nevertheless, they are in business," he said. "They don't want to violate the law."
But the problem was that they could not tell what the law defined as obscene, Marks said. Judges ignored previous rulings and reacted viscerally to the material before them. He had been involved in cases where judges had refused to recognize that almost exactly the same material had been ruled legally protected in other cases.
Rehnquist interrupted. "You're not talking, then, about precisely the same film, an absolute duplicate, you're talking just about similarities?''
"I'm talking about two
film
s that if you put them back to back and took away the faces of the actors, it would be impossible to describe any difference in what was portrayed on the screen," Marks said.
"But films presumably, at least, sold under different titles or produced by different producers?" Rehnquist asked.
Marks agreed, but he contended that the materials were the same. "If I see a magazine that shows a picture of a naked woman, with her legs spread, what's known in the trade as a 'beaver shot,'" Marks continued, ignoring the startled looks of the Justices, "and this Court has said that's protected
, and I see another magazine wit
h a woman with her legs spread and a beaver shot with a different title and a different woman, I would like to be able to tell my client: 'It's all right to sell that, because it's been held protected.'"
Marks paused. He noted Rehnquist's broad grin.
"But some courts will say, 'Why, that's ridiculous, it's a different woman and it's a different camera angle and it's a different magazine, so how could the material be protected?' "
Marks fumbled in a briefcase for a
New Yorker
magazine cartoon he had brought. "It shows two gentlemen in black robes strolling along," he said, "and one of them is saying, 'If it turns me on it's smut.' "
At conference that week, it was immediately clear that the Chief had decided to reject the privacy argument in all the cases. He had one other firm vote, Rehnquist's.
Brennan reiterated his willingness to extend the privacy logic, provided that children and unwilling viewers could be protected. Stewart and Marshall were firmly with him. Douglas would never join any opinion that preserved a definition of obscenity, but he would surely concur in the judgment. White, Powell and Blackmun were inclined toward a more restrictive view of obscenity than Brennan, but they all had problems with the Chief's view.
Brennan felt he had a fighting chance with the three uncommitted votes. But the California pornographic brochures case
(Miller)
, in which Burger attempted to redefine obscenity the previous term, was the wrong vehicle. The brochures had been mailed unsolicited to an unsuspecting restaurant manager and his mother. Both were clearly unwilling viewers. Revising last year's memo as a potential majority opinion, Brennan decided to concentrate on the Atlanta theater case.
The theater had no outside display advertising except signs indicating that it exhibited "Atlanta's Finest Mature Feature Films." It had a sign on the door saying: "Adult Theater—You must be
21
and able to prove it. If viewing the nude body offends you, Please Do Not Enter." Children were not allowed inside. This was the perfect case in which to extend the privacy argument allowing consenting adults to see what they chose.
Brennan decided not to wait for the Chief to circulate his opinion and got his opinion out first.
Burger circulated his drafts in the early spring, one at a time. They put to rest any hope that he might be willing to extend the privacy doctrine. While a person had a right to have what he wanted in his home, pornographic or otherwise, the Chief said, it did not follow that he had a right to import or acquire it. These steps were "seductive," leading ultimately to a result no one wanted—widely available pornography. It was time for "line drawing." Privacy in the home was where Burger drew the line.
The Chiefs draft also offered the states a new set of guidelines in defining obscenity. Where the previous definition had held that a work must be "utterly without redeeming social value" to be found obscene, Burger said the courts need only find that "taken in context [it] lacks serious literary, artistic, political or scientific value." That would stop pornographers from avoiding prosecution by slipping in a passage from Shakespeare.*
Where the Court had traditionally permitted pictures of nude models without any sexual conduct, the Chief proposed that "lewd exhibition of the! genitals" be banned. Similarly, the Chief shifted the Court's attention away from the traditional standard of how
explicit
the obscene material was. In the Chiefs view, the sexual acts themselves were "hard-core" rather than the pornography. He would allow communities to ban any offensive portrayal of a "hard-core" sexual act, no matter how clinical, vague or even metaphorical it might be.
The full realization of how far the Chief was willing to go, however, did not sink in until he circulated his draft opinion in the Peek-A-Boo Bookstore case. Though stories of how shocked Burger had been by
Suite
69
had spread through the clerk underground, few believed that he would declare that books without pictures could be banned. But Burger had written that, from its first obscenity opinion, the Court had made no distinctions as to the medium. Even if it consisted of words alone, obscenity was not protected by the First Amendment. "For good or ill, a book has a continuing life. It is passed hand to hand, and we
* The Chief cited Rehnquist's
per curiam
opinion in the Wisconsin underground paper case of the year before. "A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication . . ." What was originally to have been an opinion setting textual materials apart as intrinsically protected, was now support for the opposite thesis.
can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact."
Burger's draft in the
Suite 69
case came as a particularly painful blow to Brennan. Brennan had designed his obscenity strategy years before as a way to protect books. Now, his attempt had been turned around against him.
After the Chiefs shenanigans in the abortion cases, Douglas could not be more cynical. But the possibility of banning books stirred his worst fears. The stronger the censor's hand, the greater the danger. He drafted a footnote to the opinion he had completed the prior term: "What we do today is rather ominous as respects librarians. The net now designed by the Court is so finely meshed that, taken literally, it could result in
raids on libraries.
Libraries, I had always assumed, were sacrosanct, representing every part of the spectrum. If what is offensive to the most influential person or group in a community can be purged from a library, the library system would be destroyed."
The Chief had held out some faint hope of getting Stewart's vote on the obscenity cases. But Stewart was distraught over Burger's apparent willingness to allow cases to be decided on the basis of local standards. What the Chief was proposing would yield at least fifty separate First Amendments. For Stewart, there was one Constitution, and one First Amendment, and one Supreme Court that existed to protect free speech everywhere. It would be absurd, he told the conference, that what a person could see or hear would depend on where the person lived. But Stewart was fatigued. Brennan could lead the fight.
Brennan circulated another draft critical of the Chiefs new restrictive definitions. There had been recurring abuses and misreadings of obscenity law by lower court judges. Juries had been vindictive toward pornographers. State legislatures might well pass new laws severely restricting free speech. "Utterly without socially redeeming value" had been the most important safeguard in the obscenity law. It was being gutted.
The Chief thought Brennan's concerns ridiculous. In his next draft he said that "these doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material."
By late April, White was tired of the unproductive dialogue between Brennan and Burger. He was still unsure in which direction to go. Brennan's approach dictated too much to the states—telling them what they could and could not do in the obscenity area. It would be like ordering a neighborhood to accept the most rancid pornography as long as it was for consenting adults. He was unimpressed with Brennan's complaints that the local governments would never be able to unambiguously define obscenity. After all, in order
to protect children and unwill
ing viewers, Brennan still retained a definition of obscenity—"explicit portrayals of ultimate sex acts," which Brennan listed.
Besides, no one could predict whether lower courts, judges, juries and state legislatures would do better under Brennan's definition than under the Chief's. For White, the Chief's approach seemed to allow more local flexibility, but his drafts had their problems. They were filled with awful ramblings, and each new version seemed to contain intemperate language. Burger's clerk delivered each successive draft to White's chambers with an apology for its tone. The clerk said he had done his best to harness and control the Chief, but Burger insisted on releasing a little venom.
Almost ritualistically, White's clerk would secure White's suggestion that certain language be dropped, and then would feed the edited version back to Burger's chambers. The omitted reference would be replaced by other, often equally intemperate language.
In one draft, the Chief compared obscenity to garbage floating in the harbor of Hong Kong. And if the people of Hong Kong are required to clean up their garbage, he wrote, then the United States should clean up its own garbage. Burger refused to delete the comparison, and only reluctantly allowed it to be rephrased by his clerk—"Nor do modern societies leave disposal of garbage and sewage up to the individual 'free will,' but impose regulation to protect both public health and the appearance of public places."
But for White there was a more troublesome problem. Some limits had to be set to say where local control ended and where First Amendment protection began. Legitimate expression had to be protected. Local communities and states could not simply be left to decide what the First Amendment meant. In that event, Stewart's fear that the First Amendment would be Balkanized into fifty separate doctrines would become a reality. Under the Chief's definition, world-famous works of art might be banned in some places. Popular literature that was objectionable in some places could be censored. The thought troubled White.