Thy Neighbor's Wife, page 47
“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.”
Fleishman was clearly riled by Tuttle’s closing remarks, and as soon as he had settled himself at the podium he began to aggressively refute the contentions of the government prosecutor.
“Chief Justice,” Fleishman began, “…the brochure simply is not obscene! It is not obscene under national standards. It is not obscene under local standards…. The prosecution says it is obscene under any standards. I would remind the Court that a film, Deep Throat, which was thought to be obscene by any standards, is being found not obscene continuously throughout the country by local juries.”
As to the government’s indictment against Hamling, Fleishman continued, it is capriciously conceived, vaguely defined, and legally defective. The indictment is characterized by such Comstockian words as “lewd,” “lascivious,” “indecent,” “filthy,” and “vile,” and yet it fails to substantiate the charge that Hamling had personally violated, either willfully or inadvertently, a crime against the public morality. “Look at the indictment—is the specificity there?” he demanded. “No,” he answered, “it is not…. What was the legal definition of obscenity at the time the indictment came down? Justice White suggests that ‘utterly without redeeming social value’ was not part of it. For the present purposes, I don’t care whether it was or was not part of the definition. I don’t care whether it was a local standard or a national standard. I don’t care whether you measure prurient interest by national or local standards or no standards. I do say that where you have a statute which is so up in the air as this one is, absolutely the irreducible minimum is that we are entitled to have in our indictment what the charge is, and not have these vague words ‘lewd,’ ‘lascivious,’ and the like, and say that everybody knows what that is, of course we have always known what that is.
“Now,” he continued, “we do have other points, and I would like to emphasize, if I may, some of the vices that came from the infirmity of the indictment. For example, we were charged, in statutory language only, in response to a bill of particulars, that the material was offensive because it appealed to the prurient interest of the average person. And yet [the San Diego jury]…was told that they could convict if it appealed to a prurient interest of the average person or a clearly defined sexually deviant group. When we complained to the Court of Appeals, the Court of Appeals said we were right, that it should have been solely measured by the average person, but it was harmless error….
“Pandering, also,” Fleishman went on, “there isn’t a word of pandering in the indictment, nothing in the bill of particulars—and yet the jury was instructed that they could convict on a pandering doctrine without the slightest evidence of any pandering. There isn’t a case that I know of which holds that an advertisement can pander itself….”
“What was the situation in the Ginzburg case, Mr. Fleishman?” asked Chief Justice Burger. “Was there anything?”
“No,” said Fleishman, “in Ginzburg, your honor, as I read Ginzburg, the Court held that the books involved were rendered obscene because the brochure advertising them in effect said that they were obscene and therefore that could be taken into account. But Ginzburg did not at all suggest that the advertisement could pander itself. It’s logically inconsistent, because in this case if the brochure was mailed, either it’s obscene or it’s not obscene. It doesn’t in any way lend itself to a pandering instruction….”
“Mr. Fleishman, does the record show how the mailing list of 55,000 people was compiled?” It was the soft Tidewater-Richmond inflection of Justice Lewis Powell, speaking for the first time today; and as Fleishman shifted on his crutches so that he could directly face his interrogator seated to his extreme left, this jurist who might represent the “swing vote” in this case, the lawyer responded in a conciliatory manner: “It does not, your honor. What we do have is, for sure, that twelve people were offended. That is all we know. That fifty-five/fifty-eight thousand [brochures] were mailed, and that twelve people were offended….”
“Does the record show whether any of the fifty-five/fifty-eight thousand people had requested the brochure?”
“The record is silent on that point, your honor.”
“Does the record show,” Powell went on, “whether it was received by any minors?”
“The record does show that it was not received by any minors at all,” Fleishman replied, pleased with the opportunity to impart this fact to the justices of the Supreme Court; and he also took the opportunity to add that, after Hamling’s office had learned of the twelve complaints to the Post Office, all twelve names were immediately removed from the distributor’s mailing list, guaranteeing that the complainants would be spared the receipt of more sexually oriented mail in the future.
“I suppose,” Justice Powell continued softly, “there was no way to tell the number of children in the fifty-five thousand homes into which this brochure was mailed?”
“No,” Fleishman admitted, “but I would say this, since we are supposing, your honor: I know that the list was purportedly a list of persons who had previously indicated their desire to receive sexually explicit material. Those are the only mailing lists that are worth anything, because one tries to mail to those persons who are interested…. If you want to sell cat food, you want to mail material to people who have cats.”
Perceiving what might have been the mildest of smiles on Justice Powell’s sober countenance, Fleishman continued: “So the truth of the matter is, the brochure was mailed, as fully as one could, to those adults who had indicated that they did want it. Now that’s not in the record, and I don’t want to mislead the Court, but I think that is the true answer as to who was in fact the recipients of the ad. We have, as I say, twelve people who are offended. But,” he concluded, “there are twelve people who are offended by receiving many political brochures, too, your honor.”
Justice Powell, who seemed satisfied with Fleishman’s answer, had no further questions. Since the allotted time of his rebuttal had expired, Fleishman thanked the Court and heard Chief Justice Burger announce: “The case is submitted.” As the marshal banged the gavel, the nine justices stood, turned, and quickly disappeared through the red velvet draperies. The spectators began to leave their pews and move slowly through the crowded aisles toward the rear exits; but Hamling edged his way forward toward the counselors’ table to shake hands with Fleishman, to congratulate him on his handling of the case, and to express optimism about the outcome. Fleishman smiled, but warned him against overconfidence. The vote, to be announced in ten weeks, would be close, Fleishman predicted; it would probably be a five-to-four decision, with the private musing and vicissitudes of Justice Powell perhaps determining the conclusion of the entire case.
On June 24, 1974, Stanley Fleishman received from Washington the disturbing news: In a five-to-four vote, Hamling had lost. Hamling had been supported by the Court’s liberal foursome—Douglas and Marshall, Brennan and Stewart—but Justice Powell had remained allied with the other Nixon appointees, and Justice White, in forming the majority. The prevailing opinion, written by Justice Rehnquist, overruled every objection that Fleishman had raised in Hamling’s behalf. Rehnquist declared that the government’s indictment had been “sufficiently definite” in clarifying the charges against Hamling; that such words as “lewd,” “lascivious,” “indecent,” etc., in the Comstock postal statute were not “too vague” to justify Hamling’s conviction; and that it had not been “constitutionally improper” of the California judge to employ national standards, and to disallow local evidence, at Hamling’s trial in San Diego. While Hamling might have sincerely believed that his brochure was not legally obscene, Rehnquist said in effect that that was no defense; and Rehnquist supported his position by citing the 1896 case of Rosen v. United States, in which a New York publisher named Lew Rosen, after claiming that he did not know that the ladies photographed in his periodical were obscenely posed, was told by the Supreme Court that his knowledge of obscenity was irrelevant: His conviction was affirmed because he was aware of the content of the material he had mailed.
While the film Carnal Knowledge was vindicated by the Court in a companion opinion that was also authored by Rehnquist—“there are occasional scenes of nudity,” Rehnquist wrote, “but nudity alone is not enough to make material legally obscene”—the Hamling brochure was, in Rehnquist’s words, “a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller.” And so Hamling’s conviction was final; a stay in prison was inevitable; the $87,000 fine was payable.
In newspapers throughout the land, Hamling received little sympathy on the editorial pages, and only minimal coverage in the news columns—except for the CDL’s National Decency Reporter, where there was a front-page photograph of Justice Rehnquist with an adulating article about his ruling, under a headline that read: “All Systems ‘Go’ for Obscenity Prosecutions.”
At Fleishman’s request, several lawyers, writers, publishers, and editors joined Hamling’s family in writing mercy-pleading letters to the San Diego judge who now controlled Hamling’s immediate fate; but the only concession that Fleishman could achieve after the payment of the fine was a reduction of the prison term to less than a year in Terminal Island on the understanding that Hamling would sever all business connections with erotic publishing, and thereafter cease to write, to edit, or to distribute any material even mildly related to sex. Hamling also understood that, at the risk of violating his five-year probationary period, he would be wise to refrain from writing magazine articles or books about the vagaries of sex laws, or lamentations about his own predicament and punishment—meaning that his written views about his case would be restricted to the personal letters he mailed to his friends or attorney. In one letter to Fleishman, he wrote, as if he could yet barely believe it, “I am a criminal…. It has been determined. One vote in nine has determined the brochure for the book illegal and my sentence thus affirmed. Irrelevant thought, traumatic in its perplexity: Justice Black was sitting at the time the brochure was mailed…. The one vote would have been different. I would not be a criminal…. But Justice Black is not now sitting, [having been replaced by Justice Powell], therefore I am a criminal, consigned to the limbo of convict life and brand. How does one adjust to this? A question of personal taste and legal ambiguity that swings the scales of justice 5 to 4 either way…as capricious as the changing wind at sunset.”
TWENTY-FOUR
IN HIS MORE visionary moments, sitting on his round bed in his private airplane, a sleek black DC-9 jet that regularly transported him and several playmates between his mansion in Chicago and his mansion in Los Angeles, Hugh Hefner saw himself as the embodiment of the masculine dream, the creator of a corporate utopia, the focal point of a big-budget home movie that continuously enlarged upon its narcissistic theme month after month in his mind—a film of unfolding romance and drama in which he was simultaneously the producer, the director, the writer, the casting agent, the set designer, and the matinee idol and lover of each desirable new starlet who appeared on cue to enhance, but never upstage, his preferred position on the edge of satiation.
Ever since his adolescent days as an usher at the Rockne Theater in Chicago, Hefner had been enchanted with movies, had accepted uncritically their most improbable plots, had languished in their emotions and reveled in their adventures; and as he stood watching in the darkened theater, he often wished that the lights would never turn on, that the story on the screen would continue indefinitely and delay forever his return to the mundane, tidy home of his German accountant father and his prim Swedish mother. It was his mother who had first perceived his escapist tendencies and had learned from an examining psychologist that her son was a kind of genius with afflictions of immaturity, an appraisal that had worried her but would never embarrass Hugh Hefner. On the contrary, he coveted his youthful illusions, intensifying them to a passion; and now in the mid-1970s, relaxing in his plane or luxuriating in his mansions, he could look back on the many happy years in which he had escaped the boredom that other people rationalized as “maturity,” and had expanded his fantasies into a multimillion-dollar empire.
