The Court Moves Against Porn

Pornography, as everyone knows, is --well, what is it? Supreme Court Justice Potter Stewart once delivered a classic answer, of sorts, by saying that he could not exactly define it, but "I know it when I see it." Ever since, the Justices have been half-jokingly referring erotic works to Stewart to get his instinctive impressions.

Officially, the court has tried to follow the guidelines of Justice William Brennan who declared that nothing could be banned as pornographic unless it predominantly "appeals to a prurient interest," affronts "contemporary community standards," and is "utterly without redeeming social importance." That definition proved so elastic that it has been stretched to permit almost anything, as can be attested at many a neighborhood-movie marquee or magazine rack.

The Justices would be as pleased as any bluenose if pornography would just go away. But new cases keep coming up. There are eight, in fact, now backlogged awaiting rulings before the court's summer recess. And now that President Nixon's appointment of four relatively conservative Justices has changed the balance of the court, the anticipated decisions on pornography are likely to limit sharply the permissive conditions of the past decade.

None involves a new definition of pornography. Instead, all involve various police efforts to regulate or control it. There are four basic issues:

> Can admittedly pornographic materials be imported from abroad or carried on interstate public transportation for personal use? In 1969 the court held, in the case of Stanley v. Georgia, that a citizen had a right to enjoy anything he liked, no matter how obscene, in the privacy of his own home. But it did not give an individual the equally unlimited right to buy (or sell) such material. It ruled in 1971 that the Government's power to regulate trade entitled it to ban the importation or transportation of pornography for commercial purposes. In one of the cases now before the court George Orito was arrested after flying from San Francisco to Milwaukee with 83 reels of dirty movies in his baggage. Orito, who had a record of trafficking in pornography, claimed that the films were purely for his personal use, even though some of them were duplicates. The court is being asked to rule on such situations, although the Federal Government says that it will prosecute only when it suspects that a commercial deal is involved.

> Does "contemporary community standards" mean local or national standards? A movie that could cause an uproar in Fort Wayne might be considered routine in New York (or, conceivably, vice versa). The problem before the court involves Marvin Miller, a film producer, who mailed out five advertising brochures for a movie and various books. He was convicted in conservative Orange County, outside Los Angeles, on the basis of a police poll purporting to demonstrate that, whatever the rest of the country might think, California's community standards had been violated. Civil libertarians argue that such a doctrine would require both

Hollywood studios and national magazines to risk local prosecution in the most restrictive areas.

> Can purveyors of obvious pornography be prosecuted if they make a reasonable effort to exclude juveniles and to forewarn any adults who might be offended? When a Los Angeles plain-clothes policeman walked into a store and asked about "sexy books," the store's proprietor, Murray Kaplan, answered: "All our books are sexy." Kaplan was duly arrested and convicted for selling the policeman a book that "in vulgar, gutter language ... instructed on an act of oral copulation." Kaplan and the defendants in two similar cases (another bookstore, a movie theater proclaiming ADULTS ONLY) argue that if an adult is permitted to have pornography in private, they should be able to sell it as long as they provide clear warnings about the nature of their offerings.

> Must the authorities hold a formal hearing, with lawyers present, before they can seize alleged pornography as evidence for a criminal prosecution?

In 1969 Manhattan Criminal Court Judge Arthur H. Goldberg sat through two hours of the Andy Warhol film Blue Movie, then signed warrants for the seizure of the film and the arrest of the manager, projectionist and ticket taker. The Supreme Court had ruled in 1961 that authorities must grant a preliminary hearing before subjecting the contents of a bookstore to a civil seizure (thus possibly driving it out of business). The Justices are now being asked to extend that standard to seizures of evidence for criminal prosecution. They therefore must decide whether lawyers for both sides should have an opportunity to argue their case before seizure in order to prevent the Government's right to gather evidence from being used in effect as a power to censor.

No one can be sure in advance how the court will decide these questions, or what its reasoning will be, but one hint came last December in a slightly different regulatory case. The court decided that state liquor authorities had the power to withhold liquor licenses from places that featured bottomless dancers or erotic films. Considering that ruling as well as the general inclinations of the men on the court, the shrewdest observers are betting that every pornography case will go in favor of tighter controls.

For years, during the era of the Warren Court, judicial opinions had suggested that perhaps the ultimate solution to the pornography problem would be to permit anything to be sold as long as the customers were limited to adults perfectly well-aware of what they were getting. That would, if nothing else, have settled the vast bulk of pornography litigation. Paradoxically, if the Burger Court begins taking a tougher line, it will probably assure another flood of cases--which will force it to confront once again the problem of defining what pornography really is and deciding what should be done about it.

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