by Bob Woodward
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.
The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court. He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law. Their lack of agreement gave him an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years. There had to be a way to suppress pornography and still protect free speech, he felt.
The January 21 conference, with Powell and Rehnquist now in attendance, was a test of endurance. By the time the Justices got to the three obscenity cases, their energies had measurably faded. The first case (Miller v. California) was the most difficult, in that it raised questions about the definition of obscenity. The conference put it aside and turned to two cases that involved extending the Stanley privacy decision.*
The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly. Stewart and Marshall were ready to vote with him to extend the Stanley decision to cover both cases. To Douglas's surprise, Powell also joined them. In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas. One of their recommendations had been to extend the Stanley privacy doctrine. Powell was willing to follow the advice, at least tentatively. Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.
The Chief waited and spoke last. He was willing to go along in one case, perhaps both. "I'll try my hand at the opinions," he said.
There was nothing fashionable about the boisterous older black man at the corner table of Washington's Trader Vic's restaurant. Amid a Polynesian decor of palm leaves
* US. v. Onto and US. v. Twelve 200-Foot Reels of Super 8 mm. Film.
and bamboo, and in the din of the luncheon crowd on April 27, two younger men attentively listened to him.
The older man's heavy dark-brown horn-rimmed glasses seemed several sizes too small, pinching his massive head. His loud high-pitched "Hee, hee, hee" lasted fully ten seconds as he wheezed at his own jokes.
Marshall was lunching with two of White's clerks. He had turned to his favorite pastime of reminiscing as a respite from the pressures of the Court. An accomplished raconteur, he needed little encouragement to get him started. He would tell stories of Baltimore ghetto life in a resilient family; night riders chasing him along country back roads in the South; courtroom encounters with bigots and buffoons; the little boy in Mississippi who asked him "What's that?" as Marshall ate an orange outside a courthouse; General Douglas MacArthur and the Army's racism.
Often Marshall would corner one of his clerks after lunch and spend hours in the special chair they reserved for him in their office. By the time he had worn out his own clerks' patience, clerks from other chambers might have wandered in for a new round of the endless storytelling. But they could always leave. His own clerks had nowhere to go.
At one point, his clerks tried piling books on Marshall's chair to discourage him from settling in for the afternoon. They underestimated their boss's stamina. Marshall had spent years standing in courtrooms, corridors and school-houses. Finally, the clerks took to hiding in his second-floor office.
The first two years of Burger's reign had had their difficult moments for Marshall. He had always seen Burger as an inappropriate caretaker of a seat that had belonged to a man of the stature of Earl Warren. But his annoyance with the new Chief's style never eroded his respect for the office of Chief Justice.
Now, however, as the four Nixon appointees increasingly joined White and occasionally Stewart to chip away at Warren Court precedents, Marshall felt the outlook was grim. He seemed to grow weary, more discouraged. "I'm going fishing, you kids can fight the battles," he would tell his clerks. "What difference does it make? Why fight when you can just dissent?"
Some clerks in other chambers came to the conclusion that Marshall was unfit to sit on the Court. He was not willing to do his homework, not willing to prepare for his cases, not of the intellectual caliber of Douglas, White, Stewart or Brennan, not combative enough to take on the others in conference.
Marshall's own clerks felt that he knew where he stood on every issue of importance to him. He might not prepare extensively for either oral argument or conference, but his ability to think on his feet—a talent developed during years on the road for the Inc. Fund—made him an incisive questioner at oral argument. And, when he chose to speak, he was a skilled debater at conference.
One of the issues that Marshall enjoyed arguing with his clerks was the question of what was obscene. He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.
What about his liberal opinion for the Court in Stanley? his clerks would ask.
He had meant only to protect people's privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.
But, a clerk once pointed out, "You said that the right to privacy must go further than the home."
"No," Marshall retorted. He had never said that.
Yes, the clerk insisted.
No, never, Marshall was sure. "Show me."
The clerk brought the bound opinions.
Marshall read the relevant section.
"That's not my opinion, that's the opinion of [a clerk from the prior term]," he declared. Opening the volume flat, he tore the page out. 'There. It's not there now, is it?"
At Trader Vic's, Marshall had just lau
nched into another story when he suddenly stopped. He stared at his watch a moment. It was about 1.50
"My God, I almost forgot," he said in a stricken tone. "It's movie day, we have to get back."
Movie day was the humorous highpoint of most terms.
Year after year, several of the Justices and most of the clerks went either into a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.
Douglas, and Black during his years on the Court, never went. In their view, nothing could be banned. "If I want to go see that film, I should pay my money," Black once said, and he wondered aloud why nine men, many in their seventies, should make judgments about sexuality. The Court was acting as a "Supreme Board of Censors," he said.
Burger too preferred not to go.
But the others sat on folding chairs with their clerks, watching such films as I Am Curious (Yellow) projected onto a white wall. During his later years, Harlan watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would describe the action. "By Jove," Harlan would exclaim. "Extraordinary."
Clerks frequently mocked Stewart's approach to obscenity, calling out in the darkened room: "That's it, that's it, I know it when I see it."
Marshall's quips were the best. The previous term, a pornographic movie had used the familiar ruse of posing as an educational film. The actor playing a psychologist had concluded by stating, "And so our nymphomaniac subject was never cured." Marshall retorted, "Yeah, but I am."
Now the lights were about to go off as Marshall and White's clerks plunged through the door to see Vixen, a "soft-core" feature with nudity but no explicit intercourse.
The last thirteen minutes consisted of an attempted hijacking of the plane carrying the female protagonist by an Irish Communist bound for Cuba. He gave a talk on the comparative merits of Communist and Western societies. "Ah, the redeeming social value," Marshall said.
The clerks were disappointed that the movie was such soft core.
Powell left after the first film.
The second movie was Sexual Freedom in Denmark, a feature documentary that had been released two years before. A very serious commentator explained the harmful effects of liberal Danish sexual attitudes, and showed a photograph of a penis in the last stages of syphilis. The dull narrative was punctuated by drawings of sexual and reproductive functions in color.
Blackmun sat stone-faced, ignoring the banter from Marshall and the clerks. Marshall turned to him when the lights came on as the projectionist changed reels. "Well, Harry, I didn't learn anything, how about you?"
Blushing, Blackmun joined the rest of the room in a hearty laugh.
The second reel had the first hard-breathing segment as two women made love. Then the film returned to its clinical, documentary style. Blackmun found it distasteful. The film's tone, if not its content, degraded women. That alone was enough to predispose him against all pornography.
Back in chambers, Powell's clerks remarked to him that Vixen had been disappointing. Two clerks confessed that they had seen all the movies of the director Russ Meyer— the master of sex-exploitation films. Yale Law School had even presented a Russ Meyer festival.
Powell's gaunt face was expressionless. He had never before seen such a film, he explained slowly. He had had no idea such movies were even made. He was shocked and disgusted. He did not wish to discuss it further.
Powell's clerks were amazed. There could not have been a milder movie for him to have seen. There had been nothing more than nudity, and facial and bodily expressions that suggested orgasm. How would he have reacted to the hard-core peep-show reels with nothing but explicit sex from beginning to end?
His clerks decided not to let any other clerks know of Powell's reactions. His vote would be crucial. He was a reasonable man. Perhaps when the shock had faded a bit, his initial distaste could be overcome.
As the spring wore on and the conference waited for the Chiefs circulation, the liberals were encouraged by two cases.
Douglas found a case that pointed up the danger of obscenity laws. A radical underground paper in Madison, Wisconsin, had been run out of business, and its publisher had been harassed with a two-year prison sentence and a $2,000 fine for publishing "obscene" pictures and poems. The obscenity laws had been only a means for suppression of unpopular papers, Douglas contended. He was pleased when all the others agreed. They seemed a hair's breadth from at least establishing that printed material without illustrations could never be obscene (Kois v. Wisconsin).
The Chief assigned a per curiam opinion to Rehnquist. Though striking down the conviction, Rehnquist stopped short of where the others were willing to go. He did not write that purely textual material could never be obscene.
Douglas's second victory of the spring came in a case in which the movie Carmen Baby, a loose contemporary adaptation of Bizet's opera, had been declared obscene. The female lead's body had been displayed on an outdoor movie screen in Richland, Washington, and had been visible to neighborhood children (Rabe v. Washington).
Douglas argued that the movie would not be obscene if shown indoors, and since the statute said nothing about location, it was too vague a factor to have forewarned the theater manager. Pleased that all his colleagues except Rehnquist and the Chief agreed, Douglas assigned himself the opinion. He had never authored an opinion that accepted a definition of obscenity, however, and chose to write this one as a per curiam, so that it would be anonymous.
Douglas was a bit surprised when the Chief filed a two-paragraph concurrence, "a little snapper." If the law in question had explicitly required that certain movies not be exhibited to unwilling viewers and children, it would have been constitutional, the Chief wrote. Douglas took some consolation that at least Burger was thinking about the distinction between public and private exhibition. Certainly that would be a factor in, any extension of the Stanley privacy doctrine.
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 war 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 Brennan's own view. "Boys, do you think 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.