Austin v. Kentucky

Cir. Ct., McCracken County, Ky. Certiorari granted limited to Question 2 presented by the petition which reads as follows:

“2. Whether Section 436.100 of Kentucky Revised Statutes, on its face and as construed and applied, abridges freedoms of speech and press and arbitrarily deprives persons, including petitioner, of liberty without due process of law contrary to the provisions of the First, *917 Fifth and Sixth Amendments as subsumed into the due process provisions of the Fourteenth Amendment to the Constitution, because:

Stanley Fleishman and Sam Rosenwein for petitioner. Robert Matthews, Attorney General of Kentucky, and John B. Browning, Assistant Attorney General, for respondent. Edgar A. Zingman and Joseph S. Freeland for Kentucky Civil Liberties Union, as amicus curiae, in support of the petition.

“(a) the statute arbitrarily and capriciously provides that the sale of any publication found to be obscene ‘shall be prima facie evidence’ that the seller had ‘knowledge of the obscene character’ of the publication;

“(b) the court below arbitrarily refused to instruct the jury that if the jury found that the petitioner had a good faith belief that the publications involved were not obscene, then petitioner was entitled to an acquittal; and

“(c) the court below arbitrarily excluded from consideration by the jury substantial evidence, both oral and documentary, showing that petitioner had no knowledge of the contents or of the alleged obscenity of the publications involved in the prosecution herein upon which the judgment of conviction against petitioner was rendered.”

Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that certiorari should be granted on all the questions presented by the petition.