City of Portland v. Jacobsky

CITY OF PORTLAND

Anthony J. et JACOBSKY al.

Supreme Judicial Court of Maine.

Argued Sept. Aug.

Decided so-called, bookstores, operators adult

are variety stores. from City appealed the Plaintiff When determination the District Court’s flawed, was of this ordinance enactment as- cross-appealed, Defendants the several was unconstitu- the ordinance serting that were 14 cases point At tional. (Cumber- consolidated. ordinance, County) concluded land initiative, properly been had by proposed was consistent City and by the enacted declared, The Court statutes. with state invalid was however, that the ordinance upon the freedom infringed because Defendants these guaranteed Rights of the Consti- by the Declaration sug- The Court further Maine. tution of imper- sobe the ordinance gested that satisfy it fails to missibly vague that Maine’s Consti- requirement of process due tution. City appealed judg- The Plaintiff Hefferan, Mittel & Robert Edmond Mit- cross-ap- Defendants ment and the several

tel, Lane, Portland, (orally), Charles A. for peal. plaintiff. appeal City of Portland’s We sustain Longley, Burke, Whalen & James E- cross-appeal. deny the and we Burke, Lewiston, (orally), for DePaolo and Graten. studied we have threshold At the the Plain

Bernstein, Shur, arguments that Nelson, Sawyer the Defendants’ & John complying Paterson, deficient Shedd, City M.R. was (orally), Jeffrey T. tiff adopting this Portland, Discatio, of it steps required Jacobsky, Stilphen, for upon Superior Court Ratliff, did the McCarthy As & Brown. ordinance. procedures review, conclude Lilley, Eggert, Daniel G. E. Paul Port- seriously City by the were followed land, Campbell for & Palmer. by nothing take The Defendants flawed. Jeffco, Smart, Jeffco, May Stephen & arguments. these Portsmouth, N.H., Roy and Rossetti. We further appropri conclude that NICHOLS, C.J., McKUSICK, Before procedures ate available the Plaintiff WATHEN, VIOLETTE, GLASSMAN City for adjudicating violations of the ordi SCOLNIK, JJ. 80H, M.D.C.Civ.R., nance. Rule authorizes the District Court to handle civil violations NICHOLS, Justice. alleged such as those by the Plaintiff appeal, This testing constitutionality against Defendants. fines that obscenity ordinance imposed enacted for violations of the Port by Plaintiff, City Portland, arises compel out land ordinance do not find alone of 14 proceedings Rule 80H commenced in brought pursuant that an action (Portland) 1983 in District Court to collect ordinance is criminal in nature so as to penalties civil for violations of require procedural safeguards provided this ordi- nance respective Defendants, Ward, from the who Rule 80H. See United States primacy correctly rule was followed

L.Ed.2d Nor is the thrust crim- Superior Court. requires proof inal because the ordinance unchanged since Upon considering of scienter. the other Maine statehood the Declaration achieved employed by factors this Court in State v. Rights proclaims of our Constitution Anton, (Me.1983) 463 A.2d 703 pertinent part: Supreme United States in Kennedy Court Every may freely speak, citizen write Mendoza-Martinez, v. 372 U.S. publish his sentiments on sub- (1963) S.Ct. 9 L.Ed.2d 644 to discern being responsible for the abuse of ject, nature, whether the criminal in ordinance is this liberty. we conclude that ordi- violations this Const, impact Me. 4.2 The art. of this nance are civil in nature. provision publication the of obscene ma- on, then, We move to the Defendants’ analyzed terials has never been heretofore two-pronged challenge. constitutional by hand, this On the other the Court. They obscenity assert that this ordinance Supreme United States other (a) is so infringes upon overbroad that it many courts have had occasions to federal guaranteed their constitutionally freedom application determine the of the First (b) in language is cast publications. to such We note Amendment vague prosecution that is so of them tyith the which the drafters the care under the ordinance would result a deni- followed the con ordinance have Portland al constitutionally protected right of their test that United junctive three-element process.1 to due forth Miller v. States Court set Just expressing opin as we avoid California, 413 U.S. questions (1973),

ions on constitutional when the delineate the appeal may issue before us on scope protected of obscene not otherwise resolved, policy judicial a similar safeguards re of the constitutional impels ruling straint us to tracking forbear from By First Amendment. Miller federal questions constitutional when the obscenity, the Portland ordi- definition of provisions of our state passes constitution under the federal con- muster nance Larrivee, settle the matter. language be- Any stitution. difference (Me.1984); Rowe, A.2d State v. and the Unit- tween Constitution the Maine is, in the (Me.1984); context 480 A.2d State v. Cad ed States Constitution man, (Me.1984). case, striking 476 A.2d justify This this out insufficient upon pri- 1. The Defendants focus their attack as useful designed device and marketed marily genital definition that is set forth in Section 1 of this of the human for stimulation .,. ordinance: organs; and whole, performance (C)taken literary, "Obscene” means material aor lacks serious as a artistic, that: political value. or scientific (A) person, average applying contempo- standards, rary community counterpart would find that within 2. The is found federal appeals prurient taken as a whole inter- Constitu- to the United States First Amendment sex; est in tion: (B) depicts or describes: abridging Congress ... make no law shall (i) patently representations offensive or de- press; speech, .... freedom acts, scriptions of ultimate sexual normal or provision only cast in lan- Not federal is the simulated, perverted, including actual or sexu- power, but guage legislative that restricts intercourse, sodomy, bestiality; al and sexual safeguard the United declared was not applicable Supreme Court to be States (ii) patently representations offensive or de- through until Amendment states the Fourteenth masturbations, scriptions excretory func- See, e.g., comparatively period. Fiske v. recent tions, sadism, masochism, lewd exhibition Kansas, 71 L.Ed. 1108 genitals, genitals the male or female in a Tribe, generally American Consti- See L. arousal, state sexual stimulation or covered 11-2 tutional Law § genitals discernibly turgid male in a or a state ordinance argument can be made develop unique on our own to answer to is overbroad.4 problem the difficult definitional that has long litigated been and often under the First Amendment. We refuse to extend is over- An ordinance or statute protection state constitutional to obscene when its forbids broad expression that under the Miller test does proscrip constitutionally subject to conduct enjoy protection. federal constitutional pro is so broad that it ensnares tion but

Accordingly, conclude that the Portland Wright as well. v. Town tected conduct infringe upon ordinance does not the De- (Iowa 1977); 249 N.W.2d Huxley, expression guaran- fendants’ freedom of 472 F.2d Dellinger, United States Maine of our by Article teed (7th Cir.1973).5 357-359 Constitution. Kittery In Inhabitants the Town v. of of agree sugges Nor do we with the (Me.1983) Campbell, 455 A.2d 33 Superior tion of the Court that the Portland acknowledged that the definition set forth obscenity vaguen may ordinance be void for “significant in in Miller was a factor” our ess.6 An ordinance or a statute challenge consideration of that to an ordi vagueness void for when its ei grounded expression. nance in freedom of requires doing ther an act forbids or significant today.3 That definition remains vague people terms so of common Indeed, vitality the continued of Miller v. intelligence guess meaning. must at its As California, supra, recently was evidenced we reiterated Maine Real Estate Com Supreme up when the United States (Me. Kelby, mission v. 360 A.2d constitutionality Washington held the of a 1976), process requires due the law conjunctive statute drafted in terms of the provide intelligible reasonable and stan three-element test of Miller v. California. guide dards to the future conduct of our — Arcades, Spokane Brockett v. people. infirmity conclude that that is We -, (1985). obscenity not found the Portland ordi Indeed, it is nance. difficult to see how an unnecessary declare, It is for us to precisely ordinance that so follows the Mil whatsoever, opinion we intimate no wheth- proscribable obscenity ler definition of every er in provi- case that arise this unconstitutionally vague. could be I, sion of Article Section and its federal counterpart will be found coextensive. Be- case we do not of this In the context

cause we conclude that the Portland ob- produce interpret the Maine Constitution scenity proscribe ordinance does not ex- from that which would be result different I, pression protected by which is Article federal constitution. reached under the analogue, Section or its federal no valid Comment, Organiza Community generally Empirical Inquiry 5. See also Association 3. See An (ACORN) Municipality Now into the Miller v. on the tions for Reform Effects California Cir.1984); Golden, (10th Bangor Obscenity, 744 F.2d 739 Control 52 N.Y.U.L.Rev. 820- (1977). Dep't. Educ. Baptist Me. Church v. State Services, (D.C.Me. F.Supp. 1208 and Cult. Note, 1982); Overbreadth The First Amendment I, 6-A, suggestion 4. The invokes Article 83 Harv.L.Rev. Constitution, implicates of the Maine con- well the Due Process Clause of the federal Williams, vagueness see Commonwealth 6. On stitution. For a seminal article on overbreadth (1985); Bernard, see also 479 N.E.2d 687 Issues Mass. see Avoidance Constitutional Note, Broadening Decision: A The Lawson United States Court: Liberties in the Doctrine, 422- Amendment, Vagueness L.Rev. 13 Stetson 271- the First 50 Mich.L.Rev. On the issues raised herein our mandate I.

must be: Obscenity Portland Ordinance is a governmental complete ban the dissem- Judgment vacated. receipt sexually explic- ination of some Superior Remanded Court to be expression, solely potential it based on the remanded District Court for further average to offend the proceedings consistent opinion with the community. It my opin- member herein. merely ion that which offen- sive, but which itself causes no harm of a type that the compelling State has a inter- McKUSICK, C.J., and VIOLETTE and regulating, protected est in from out- WATHEN, JJ., concurring. right censorship by Article Section 4. complete- Because Portland Ordinance1 SCOLNIK, J., with GLASSMAN, whom ly prohibits sexually explicit expres- some J., joins, concurring part and dissenting irrespective harm, potential sion of its I part. affirm judg- would Court’s holding unconstitutionally ment over- broad. holding I concur with Court’s on the appeal. non-constitutional issues in this I agree with the majority that the Ordi- express- The Portland Ordinance is neither should nance be tested first under Article ly implicitly preempted legisla- nor by State Flick, State v. 495 A.2d tion. 30 The en- M.R.S.A. 1917 (1985); Rowe, State 778, v. 480 A.2d 781 procedure complied actment the clear (Me.1984). Since, view, in my the Maine

purposes Municipal of the Portland Code. provides answer, Constitution a definitive Crosby v. Town Inhabitants is unnecessary to express opinion 996, (Me.1983). Ogunquit, A.2d 468 998 whether the Ordinance meets federal consti- tutional standards.2 procedure The for adjudicating, punishment committing, violation civil held, Superior part, Court relevant under the do it in place ordinance not scope of the Ordinance was broad larger statutory criminal scheme so that prohibit enough protect- communications charged require those under it would con- I, 4 ed Article Section of the Maine safeguards. stitutional criminal State v. Constitution. The Court assumed Freeman, (Me.1985). A.2d 487 1175 How- defense “overbreadth” was available ever, respectfully I dissent from the challenge defendants these the statute holding Court’s this Ordinance does section, under not some not, face, speech on its violate the free might seized from be them banned guarantee I, 4 of Article of the Section regulation.3 Despite under a narrower I, Maine Constitution. on Article 4 for reliance Section the sub- append- complete text of the Ordinance is "overbreadth” is that “the statute's 3.The defense language, applied opinion. which has been to the defend- ed to this ant, broadly phrased though so [even necessarily vague] also a reasonable that it 2(e) Superior 2. The Court noted that sections capable application to other construction conduct, Ordinance, (f) creating pre certain constitutionally pro- which cannot state, sumptions might meet fed of mental Bernard, scribed.” Avoidance Constitutional eral Red constitutional standards. Bluff Cf. Supreme in the United States Court: Lib- Issues Drive-In, Vance, v. Inc. 648 F.2d 1030- Amendment, 50 Mich.L.Rev. erties First (5th Cir.1981), den., 1032 cert. 102 exception 272 It is thus an to the view, my S.Ct. 71 L.Ed.2d 453 the constitutionali- "[o]ne rule that ty who attacks opinion majority unduly perfunctory legislative actually deprived of a act must be equating the State and federal constitutional legislation." right by that of a constitutional protections addressing question. without State, (Me.1981). v. 424 702 Brann A.2d

651 II. decision, here Court stantive jurisprudence, relied on First Amendment I of the Maine Consti of Article Section Schaumburg v. Citizens citing Village of part, “[e]very citizen provides, tution Environment, 444 U.S. For a Better publish his may freely speak, write and (1980), subject, being respon sentiments Cohen, Inc. v. 420 A.2d Equifax Services liberty.” This for the abuse of this sible (Me.1980). emphasizes is affirmative had occasion to consider We have never protec the commitment of our State may assert the defense of party whether a “against governmental citizens tion of its I, under Article a statute’s overbreadth speech.” encroachment on their freedom of the Maine Constitution. The W., A.2d John recognition from the doctrine “derives (Me.1980). Expressly grounding opin our restriction of unconstitutional ion on Article id. protected speech by parties not may deter that, interest said there fundamental “[o]ur escape judi- and thereby before the court of a speech in free ‘demands the existence review_” Services, Equifax Inc. v. cial governmental justify interest to compelling Cohen, 196; A.2d at Inhabitants ” upon it.’ Id. at legislative restrictions Kittery Campbell, A.2d Town reversed a disor 1101. State v. John W. (Me.1983). “judicial prediction That solely on derly conduct conviction based assumption,” id., is no less valid in the case we found no the defendant’s words because of Article Section 4. The courts of other compelling interest in the context such question states that have considered the speech which the was uttered. litigants may have held that assert observed, dictum, that the United We rights respective of others under their con- Supreme has found a “com States “in a guarantees speech stitutional cf free justify pelling governmental interest” to manner similar to that in which over- regulating “obscenity.” Id. That state arguments un- breadth have been advanced analogy, purposes made for ment was der the First Amendment.” Aristocratic strictly correct. The and was not Mass., Restaurant Inc. v. Alcoholic instead, has, legally “ob held that Court Commission, Beverage 374 Mass. Control completely is outside the scene” material 547, 1181, (1978). 374 N.E.2d 1187 See Amendment to the protection of the First 225, Spencer, State v. 289 Or. 611 P.2d E.g., Miller v. Cali federal constitution. (1980). 1147 There is no reason not to hold 2614, 15, 23, 2607, 93 fornia, 413 U.S. S.Ct. the doctrine of overbreadth is also (1973); 37 L.Ed.2d 419 Roth v. United applicable litigation to under Article Sec- 1304, 476, 485, States, 77 S.Ct. 354 U.S. tion 4 of the Maine There is Constitution. Because ma nothing L.Ed.2d preclude thus to us from consider- meeting the definition of “ob the is on its terial Miller whether Ordinance invalid face, prohibit- unprotected, scene” is a statute as the Court decided. determine, provides right discre- have a to at their 4. Art. in full: shall tion, the law and the fact. Every may freely speak, pub- citizen write and any subject, being re- lish his sentiments on U.S. at 93 S.Ct. at 2615: 5. 413 liberty; sponsible for the abuse of this (a) guidelines whether must be: The basic ... passed regulating restraining laws shall be or average person, applying contemporary ‘the press; prosecutions freedom of the and in the community the standards’ would find any publication respecting for the official con- work, whole, pru- appeals to the taken as a qualifi- public capacity, the duct of men in or (b) depicts the work ... rient interest cations of those who are candidates for the suffrages describes, way, patently sexu- in a offensive people, matter or where the by applica- specifically defined the al conduct information, published proper public is work, law; (c) taken and whether ble state evidence, given the truth thereof artistic, whole, literary, po- serious as a litical, lacks libels, jury, after and in all indictments for court, or scientific value. having received the direction of the ing its Hampshire, dissemination does not violate the v. New 315 U.S. First Amendment even it where is not 86 L.Ed. 1031 protecting any aimed at “compelling” dictum, inter- Chaplinsky Court observed est. The State need show no more than the that “the lewd and the obscene ... are no “legitimate” power police interest part exposition ideas, essential requires regulate in other constitutional- slight step and are ... value social as.a areas, truth_” ly-unprotected even when the cen- Implicitly Id. holding there- sorship strictly on the basis of content. by purpose of the First Amend- Slaton, Paris Adult Theater I v. fostering ment limited to the search for 49, 57-63, 2628, 2635-38, 93 S.Ct. “truth,” the “obscenity” Court has deemed L.Ed.2d 446 Under the First search, entirely irrelevant to that and thus strictly Amendment a court need not scruti- unprotected.7 censorship nize content-based of “obscene” By removing protection all constitutional expression, but will defer to asserted State “category” expression, from this regulatory interests based more than on no Supreme legal Court has reduced issue “arguable correlation^],” “empirical uncer- regulation over its to one mere defini- tainties,” “unprovable “im- assumptions,” However, tion.8 substance this defi- ponderables,” and for which conclusions moralistic, nition is aesthetic and without “there is no or empirical conclusive data.” See, reference to substantive harm. Kaplan Id. See v. California, also e.g., dictionary the various definitions of U.S. 93 S.Ct. Miller, quoted “obscene” Court in by the (1973).6 at n. S.Ct. at n. Court has excluded “ob- thought Because material to meet this defi- scenity” protec- from federal constitutional entirely by nition is unprotected the First tion adopting interpretation of the Amendment, the State set aesthetic First “speech,” Amendment limits and moral that its citizens standards must there, used the “exposition ideas.” follow, even doors. behind closed States, 484-85, Roth v. United 354 U.S. at superficial simplicity reducing Moreover, speech 77 S.Ct. at 1309. when legal issue to one of definition obscures the sexually offensive,” explicit and “patently application. complexity essential It conveys ideas it must have “serious has, artistic, my view, undesirably literary, political, shifted the or scientific val- ue,” acceptable they wholly determining burden stan- outside First legislature Amendment. Miller v. 413 dards from California, approach juries appellate U.S. at and thence courts. 2615. This Un- prosecution “categorical” originally regime, stems from the der the Miller need one adopted by which “fighting to exclude introduce no standard a court or protection. Chaplinsky jury judge “obscenity” words” from to See the material. reason, making “obscenity” judgment. 6. For the same the Court refuted the has sidered the argument 595, 1987, requires California, the First Splawn Amendment v. U.S. S.Ct. danger” present the State a to show "clear and (1977); Ginzburg v. 52 L.Ed.2d United probability "obscenity” or a will incite States, 463, 942, 383 U.S. 86 S.Ct. 16 L.Ed.2d 31 States, criminal acts. Roth v. United 486-87, 354 U.S. at say, That is to material “obscene” in 1310; York, Ginsberg at 77 S.Ct. v. New may purveyor itself and of be deemed so if the 641, 1281, 390 U.S. 88 S.Ct. provocative emphasizes “sexually aspects.” its (1968) ("obscenity protected is not Yet, Id. at 86 S.Ct. at 947. as Justice Ste- expression may suppressed be and without dissenting opinion Splawn recognized, vens’s showing of the circumstances which lie behind advertising the defendant was convicted for phrase present danger' ap- the 'clear truthfully products. about his 431 U.S. at 602- plication speech”). protected to S.Ct. at 1991-92. approach 7. This has had ironic results. Under doctrine, "pandering” the the circumstances of 8.See footnote 4. the be con- dissemination speech, I, abridging the freedom of or of See, 413 U.S. e.g., Paris Adult Theater I, (“The films, ”), an af- press ... Article at 2634 obvious- at S.Ct. they rep- liberty the citizen: ly, grant are the best evidence of what firmative to resent”). freely speak, a Miller determination write “[ejvery Since citizen ultimately not a a work is “obscene” is any subject, on publish his sentiments law, fact, each finding judgment but this being responsible for the abuse of lib- every considered anew case will be erty.” appellate by at least one the evidence meaning Looking plain first at the of this See, Georgia, 418 e.g., court. v. Jenkins clause, has not over- one finds that it been 41 L.Ed.2d 642 94 S.Ct. interpretation as has the by judicial laid (1974) finding that (reversing jury face, Ar- federal First Amendment. On its “obscene”). Knowledge” was film “Carnal I, merely 4 does not vouchsafe ticle Section Brennan, concurring, Jenkins, In Justice protection of ideas of to observed, that Mil- “there can be no doubt value, any subject.” but to “sentiments including requires appellate ler courts— “sentiments,” comporting ele- The word independently the this Court—to review feeling, may, by it- ments of emotion and obscenity.” Id. at constitutional fact of self, More im- be broader than “ideas.”9 Thus, only does 94 S.Ct. at 2756. portant, subject unprotected. The (or, more approach the First Amendment extends at least Maine Constitution from) obscenity permit accurately, retreat scrutiny protection constitutional-level scrutiny outright censorship without close of sentiments on sub- involved, it governmental of the interests vulgar as in ject, hostile and be problems disparate also creates serious W, sexually explicit, as in John judicial re- results and misallocation of case. None should be deemed present sources. and, by plain wholly protection without I, pro- language of Article III. permit far as to tection recedes so Though we have never examined the lan- “responsible for the holding the citizen guage of Article Section 4 of the Maine liberty.” of this abuse context, held Constitution we have drafting history of An examination govern- that it is “no less restrictive” of nothing indi- 4 reveals Article Section ment control than First is the federal any particular subject, or cate that W., Amendment. State v. 418 A.2d John thereof, 1101; was intended to Justices, treatment Opinion 306 A.2d 4 was (Me.1973). wholly protection. Section without Unlike the First Amend- Maine Con- (“Congress adopted by ment shall Constitutional make no law ... speech or no directly individual has little question When not faced content of with the prac- “obscenity," regard the "value” of has, Court that emotive function which fact, acknowledged tically speaking, may First Amend- more im- often be the expression. ment’s concern with emotional message sought portant the overall element of Georgia, Stanley equated Justice Marshall "the communicated. to be right pleases” to read or observe what [one] 15, 26, California, Cohen v. "right satisfy intellectual [one’s] 29 L.Ed.2d 284 557, 565, emotional needs.” 394 U.S. that, acknowledged line between "[t]he also has 22 L.Ed.2d late mere entertain- of ideas and the transmission expansive. was more Justice Harlan draw, elusive for this Court is much too ment linguistic expression serves a dual [M]uch all,” be drawn at such a line can if indeed conveys only communicative function: not 566, Stanley Georgia, U.S. at 89 S.Ct. 394 relatively capable precise, ideas of detached that, ”[e]ntertainment, po- as as well and explication, inexpressible but otherwise emo- protected.” ideological speech, . and litical fact, tions as well. In words are often chosen Ephraim, Borough Mt. Schad v. of cognitive for emotive as their as much their 2176, 2181, (1981) the view that the force. We cannot sanction Constitution, (nude dancing). cognitive while solicitous of any vention of 1820 without debate rele- expounding.” Maryland, M’Culloch question. vant to this See Debates and (1819). Wheat. L.Ed. 579 Journal the Constitutional Conven- (1819-1820), tion the State Maine IV. (Debates) (Journal) at 115-117 and at 45-46 plain I, drafting Convention’s Because of Article commit- tee had taken the grants protection Massachusetts Constitu- to expression basis, but, tion as a because that subject, document question the crucial is what had “in forty years experience proved in- constitutes “abuse” for which a citizen convenient and defective in some few its may, nonetheless, responsible. be held provisions,” the Constitution that was Clearly, an abuse cannot be defined adopted deviated from it “in those eases subject particular expression, matter of the only, experience where the of this and oth- negate since that would the affirmative er in justify States the Union seemed to language in provision: same “may require and it.” People Address speak any subject.” ... on On other Maine, (Journal) id. at 105-106. Ar- Since hand, liberty citizen abuse this I, ticle represents Section 4 a considerable subject. matter what his The Law Court expansion provision over the of Article XVI has responsibility called under this the Massachusetts Declaration of clause a far-reaching “broad limita- and Rights,10 may presume we that it was one tion,” “Liberty that follows whatever of those cases. paths she desire to travel.” State v. City argues Mockus, “obscenity” 120 Me. 113 A. was statutory crime when Maine became a state or not there has been an Whether (1821) 1820. The Laws Maine show traveled, is, depends path abuse “open gross lewdness and lasciv- on consequences context prohibited ious behavior” say was then expression. chosen nothing expression. of mere Ch. X. Courts It is not a novel idea that an abuse of the not, event, should base modern con- liberty speech consequences relates interpretation stitutional solely par- on the solely ap- to content. This is the ticular forms of the law as it existed in proach that Amendment the First itself Oregon Supreme As the Court re- takes that comes within its observed, cently “[cjonstitutional interpre- protection. held, example, We have tation of broad clauses locks neither the threatening that a conviction for criminal powers of lawmakers nor guarantees by speech, must 17-A M.R.S.A. § of civil liberties into their exact historic supported by showing likely of the harm- centuries, forms the 18th and 19th consequences ful speech. of the State v. long as the extension remains true to the Porter, (Me.1978). This, 384 A.2d 429 we original principle.” Robertson, State v. said, application of the statute to “restricts 293 Or. (Ore.1982). P.2d produces likely speech a kind of or is long It has been understood that constitu- produce present danger a clear and tions evolve in republican our form of constitutionally may evils that Maine seek government, providing authority guid- prevent.” at 432. Id. ance but not chains and fetters. Chief Indeed, point Justice Marshall made already most the Law Court has suc- cinctly said, when he adopted approach interpreting Arti- must never “[w]e forget, it is a constitution we are cle Section of the Maine Constitution.11 10. Art. XVI then liberty press interpretation read: “[t]he Article Section 4 Our first Mockus, security is essential to the 113 A. 'of freedom a was in State v. 120 Me. in state: statute, blasphemy ought There found the It therefore to be restrained in this (1916) (finally repealed by R.S. ch. § 30 Commonwealth.” P.L.1975, 5) constitutional. ch. to be vulgar, speech in its A construction of Article We looked at hostile reasonable a contemporaneous 4, reflecting founding context to reverse con- Section our fathers’ disorderly solely conduct based viction for passions concern we the of into- avoid We on words in v. held State John W. many lerance from which so of our ances- speech punished could as there that not be fled, Maine, people tors that in be should disorderly conduct under 17-A M.R.S.A. write, publish speak, free to and unless 501(2) consequences were a unless its § danger expression their creates a harm compelling nature the State has á in- constitutionally may to others that Maine recognized in preventing. terest We expression, prevent. regulate seek To to actually the harm need not re- threatened banning required simply more than the sult, but imminence must be great its basing then enforcement de- “obscene” and enough satisfy present the “clear and to shifting cisions set the on standards danger” recently then most articulated test community and sands of moral aesthetic Communications, in Landmark Inc. v. tolerance. Virginia, 435 U.S. test, L.Ed.2d That V. requires inquiry a court to make its own The Ordinance under consideration here magnitude into the imminence and imposes outright prohibition an the on danger particular to flow the said from “promotion” or dissemination material then to utterance and balance the charac- the content of which falls within the Ordi- evil, likelihood, ter of its the well as “obscenity.” Though nance’s definition against need for the free unfettered based, part, descrip- the on a definition is expression. possibility that other cause, tion the effects the material measures will serve the interests State’s stem the consequences those need not from weighed. should be also prohibited activity “promotion.” In- W, 418 A.2d at 1102. State John stead, person’s” “average they course, implies, of this test use hypothetical reaction the content of the inquiry that there is a constitutional to be irrespective The Ordi- material context. analysis If began pre- made. with solely nance thus bans sumption challenged speech was in basis of content. its “unprotected category,” no such bal- that, “any government re- We have said ancing necessary. fact, would be we on freedom of aimed strictions rejected categorical approach “fight- presump- at the of communication content at words” John W. Id. 1104-06. tively the first amendment.” Asso- violate said, merely “language We which is dis- Independent ciation punished.” tasteful cannot be Id. Professionals Board, A.2d Maine Labor Relations may only held hostile language We be (Me.1983). pre- To overcome proscribed presents it a clear when its sumption, the must show “that present danger of harm that the State has compel- a regulation necessary to serve compelling preventing. a interest Id. narrowly it is ling state interest and that 501(2) ap- Construing 17-A M.R.S.A. end.” Id. at situation, drawn to achieve that ply to such we found requires most strict and “This standard on its face. We then re- constitutional My regulation. Id. rigid scrutiny” versed the conviction because defend- surely un- today’s majority are ant’s did not constitute clear brethren willing protection to Article present to ascribe less danger. have, however, read, extent Narrowly Mockus overruled that decision affirmed convic- W., disturbing peace. analyzed holding in tion for It John that it conflicts our context, speech light purpose, rely its its it in the n. and I do not A.2d at tendency agreed to un- what then present opinion. government compelling We dermine interests. I, especially Section 4 the First Amendment of- when is than there not the additional Thus, only fers. reason for the Court’s requirement of and John W. State v. Por- failing strictly to scrutinize the Portland ter that harm likely substantive be be same as the Ordinance is the United States by context, caused it. In this “intolerable” would be were consider- Court’s it might sets standard it equally since subject this the of the case: matter that mean which a incapable fact-finder is prohibits. the that Ordinance tolerating only that which the fact- However, Maine, is applying this Court the is unwilling finder to tolerate. As Justice States, Constitution, not the United our Harlan observed in California, Cohen expressly charter our vouchsafes to citi- “it is nevertheless often true that one speak zens the freedom to “on sub- vulgarity lyric.” man’s is another’s ject.” apply should least at at 91 S.Ct. at 1788. Our constitu- protection scrutiny of constitutional-level speak publish tional freedoms to are this Ordinance to determine it is quality By design not a device. control narrowly only compelling drawn serve guarantee they may that we hear and see State interest.12 eye that pleasing not which is to the Applying agree I myself, that standard ear, soothing to the but that which scope Court that offend, may challenge, and stimulate our substantially Ordinance is overbroad in One senses. need not view material of the unavoidably that it encompasses material type prohibited here if one will be offended protects. that the Maine Constitution However, by it. our Constitution leaves Thus, I it would find unconstitutional on its up decision to our citizens rather than face, whether or some material encom- making it by permitting govern- for them passed by might constitutionally it be ment to eliminate offensive materials that narrowly banned under a more ordi- drawn are not also harmful. Where a constitu- nance. stake, regulation tional freedom is prohibited Ordinance’s definition of private activity must based on conse- part consequences material is based quences more than moral harmful offense from result the material. How- or aesthetic distaste. ever, they consequences We are not here with an concerned ordi- clearly poten- prevent. cannot First is the preventing nance limited to intrusion offense,” tial giving “patent oc- which sexually explicit public do- curs when the material is “so offensive upon unwilling main where it is forced its face average as to be intolerable arguably in a manner that constitutes person, applying contemporary community privacy personal invasion 1(a)(4). standards.” said in We “present Z. injury” to the viewer. See language may prohib- John W. that not be Chafee, distasteful, Speech ited it I Free the United merely because States (1941); Tribe, am merely unable to how see “offensive” American Constitution- (1978).13 protection, should receive less Nor are we confront- al Law Though scope dissenting opinion Article 13. See also the of Justice Trainor, by broader than that First Amendment Abrams in 374 Mass. Commonwealth (1978), subjects expres encompassing virtue of all 374 N.E.2d 1223-26 where she sion, regulation application approach need be no out an of "ob- different sets scenity" given primarily would on the case where First Amendment based existence Thus, unwilling public. ap- protection. upon also offer v. Maine That intrusion Solmitz However, proach appeal. I has Sch. considerable (Me. 1985), Admin. Dist. No. 495 A.2d 812 adopt it I do not think would sufficiently because where the were lines drawn over the circum account, except flexible to into take government stances in which curtail making increasing . protected exceptions, the evidence may, expression, correctly this Court held sexually explicit some materials in- that deed, the First Amendment and Article Section relationship have to harm that a close "equally were applicable.” Id. at n. 2. justifies regulation appropriate means. their time, ed with a “reasonable place, repeal against and man- of the criminal laws fornica zoning tion, 1975, ner” restriction as in a adultery, sodomy ordinance by P.L. ch. only that is intended to cure evils indirectly 499, purely there are now no sexual acts related to the content of sold by materials private consenting done between adults “adult” stores.14 we Nor do consider were, prohibited. that are Even if there City might whether constitutionally course, not, consistently the State could prevent dissemination of some material to Amendment, with the First let alone Article This children.15 Ordinance is a broad cen- 4, proscribe depiction solely their sorship expression that extends on the basis that the film or literature viewing by of material “consenting adults” portrayed socially acceptable them as or private. Though may presume that Kingsley Corp. “normal.” 'l Int. Pictures acceptable the banned material to its Univ., Regents N.Y. 360 U.S. 79 consenting readers, adult viewers and S.Ct. 3 L.Ed.2d 1512 It is ban is potential Ordinance’s based on the patently arbitrary, let alone unworkable in they offense to others if were to read or practice, for sexually the State to limit it, see they actually do. It explicit to that which arouses entirely possible “average per- “only normal, desires,” healthy sexual exposed son” would ever be to the material — Brockett, -, at U.S. S.Ct. seized this case. Because the “harm” shov/ing without any expres part embodied of the definition is sion will cause substantive harm. only offense,” “patent only potential Apart from the language of the Ordi- that, offense at there is compel- not such a itself, nothing nance there is before us to ling state interest as constitutionally suggest prevent that its drafters protected acted outright ban on the compel- harms that the expression. content of State does have ling regulating. interest in I see nothing consequence The other which Or designed to indicate that the Ordinance depends “appeal dinance’s definition is an exploitation to stem the abuse and of chil- prurient interest in sex.” I am un (or dren porno- even adult models used in agree able to that the State has author graphic as photography16), in the case of ity at type all restrict the of interest its upheld by the statute the United States citizens have Clearly, in sex. Ferber, Supreme Court in New York punish State may some harmful sex-related 73 L.Ed.2d 1113 See, e.g., conduct. 17-A M.R.S.A. §§ (1982).17Nor does it appear that the Ordi- However, seq. et the Miller standard in link, any empirical nance is based on how- corporated in permits this Ordinance tenuous, prohibited ever between the mate- punish that does no preventable injury rial and to either its provoke responses more than “sexual over potential viewers and readers or their above those that would be character short, I suggest ized as normal.” victims.18 while do not Spokane Brockett v. Ar —Inc., cades, U.S. -, -, all materials covered the Portland 105 S.Ct. note, exempt regula- 86 L.Ed.2d 394 I Ordinance would be from did, Court under a narrowly with the tion law was drawn See, e.g., Young Theaters, 14. raphy, v. American Mini 7 Harvard Women’s J. 20-23 Law Katz, (1984); 427 U.S. 96 S.Ct. Regulating Obscenity, 5 Whittier L.R.l, Tribe, (1983); American Constitutional 62. Law n. See, e.g., York, Ginsberg 15. v. New (1968); 20 L.Ed.2d 195 Bookland (1983 Compare 17. §§ M.R.S.A. 2921-2923 Maine, Lewiston, City Inc. v. No. CV-83- Supp.1984). Co., (Me.Sup.Ct., 1983). And. Oct. Katz, See,, Regulating Obscenity, See, Jacobs, e.g., e.g., 5 Whitti- Patterns Violence: A Fe- Perspective Regulation er L.R. at 19-20. Pornog- minist on the sexually engaging explicit Maine By

to address “evils that constitu- conduct. such tionally may prevent,” I do not the time material reaches the seek to market- harm, place, preventable agree City may them under sexual censor abuse exploitation (e.g., of minor this Ordinance. M.R.S.A. (1983))20, inevitably will have oc- The purpose legislation curred. is to VI. remove financial incentive for the sub- in the ab- This need not decide stantive harm. Ferber concerned a similar government link how close a stract There, statute. the United States ex- sexually explicit must show between step took one towards a harm-based harm in order pression preventable approach regulation sexually ex- As concerns. a satisfy to all overbreadth plicit by upholding the statute matter, purely practical the nexus meeting even as to material not Miller expres- vary to with the medium of have “obscenity.” definition of harm. While sion the asserted is, course, government to requires approach open that This ob- John W. presented jection ground government that prove spoken that the words a on the danger” preventable present proceed directly against perpe- “clear and should particular in context in order to trators of the substantive crime rather harm their conviction, disorderly suppressing expression by prosecut- it than sustain a conduct require ing may be infeasible to such a show- the booksellers and cinemas are prosecution substantively dis- far ing in individual removed from the harm- explicit pictures Yet, seminating sexually or ful more direct methods acts. because preventing of children are preventa- written words.19 In case sexual abuse harm, ineffective, regulation may find no often it must be ble future because stronger virtually impossible to materials fall- basis than a statistical correlation obtain ing of 17 between the harm and material that the within the ambit M.R.S.A. § However, place, prohibit. gov- having without a crime taken an State seeks to far objection com- would more ernmental interest would have be overbreadth be close, in than the case of pelling, and the correlation in order difficult rationalize depicting adults. satisfy pornography Article 4. hand, Indeed, to assume regulation expres- it not unreasonable On the other circumstances, sociological someday will may, un- research sion in certain be pornography In- con- show that even certain dertaken after the fact of the harm. deed, taining only sexually explicit pictures of of Article might regulation regulation susceptible adults be might contemplate be read to example grounds support in An the same these circumstances. 17, Me.Rev.Stat.Ann., “kiddie-porn” stat- Maine and New York would Title be increasing utes. There is evidence (Supp.1984), it a crime which makes § pornography is depictions minor creation of some “adult” of a to disseminate visual States, Knowing intending or that the conduct A. But v. United see Schenck use, photographed for commercial he (1919), will be 63 L.Ed. solicits, knowingly employs, intentionally or first articulated the "clear which Justice Holmes entices, persuades, compels uses or another danger” present test. Schenck et al. were minor, engage person, is in fact a who distributing leaflets in convicted of seditious conduct; sexually explicit felt, that, the Court made circumstances Being legal guardian parent, or other a B. (interference draft) effect with the intended custody per- person having another care or likely. minor, son, knowingly or who is fact a he engage in intentionally permits minor to 2922(1) 17 M.R.S.A. reads: conduct, knowing sexually explicit or intend- exploita- person guilty Offense. A of sexual photographed for be that the conduct will minor if: tion of a use. commercial accompanied by physical chism, abuse and coer- lewd exhibition of genitals, adults, course, “questions genitals cion.21 male or female With state arousal, of sexual stimulation or willing of consent and cover- participation genitals ed male children, Katz, discernibly turgid ambiguous” more than with state or a designed device and market- Regulating and the Obscenity n. ed as useful primarily for stimulation problem regulation of overbreadth of the human genital organs; and type greater, though would (C)Taken whole, not be insurmountable. lacks serious artistic, literary, political, or scientific practical problems proof persist That value. not, however, justify does the broad censor- (2) tangible “Material” means anything Ordinance, ship if embodied in this even the capable being used adapt- City currently would find it difficult to interest, ed through to arouse narrowly enact one more drawn. This Or- reading, observation, the medium of regulates grounds dinance in which the sound, manner, or in other but City legitimate, compelling, has let alone does not include actual three-dimen- prohibits interest. Because the Ordinance sional obscene device. expression by definition itsof content with- (3) a play, “Performance” means motion regard any out to actual harm expres- picture, dance, per- or other exhibition cause, sion it is not amenable to a formed before an audience. narrower construction that would ensure (4) “Patently offensive” means so offen- application only in permissible cases. sive on its as face to be intolerable to Compare W., State v. John 418 A.2d at average person, applying contem- reason, 1101-1103. For that I would hold community porary standards. unconstitutionally overbroad in violation (5) “Prurient interest in sex” means a of Article Section 4 of the Maine Consti- shameful or morbid interest sex. tution. (6) manufacture, “Promote” means to is- sue, sell, provide, lend, mail, give, de- OBSCENITY ORDINANCE liver, transmit, transfer, publish, dis- Section 1. Definitions. circulate, tribute, disseminate, present, (a) As used in Chapter, following this exhibit, advertise, or or to or offer words shall following have the meanings: agree do the same. (1)“Obscene” means or per- material (7) promote” “Wholesale means to manu- formance that: facture, issue, sell, mail, provide, deliv- (A) average person, applying con- er, transfer, transmit, publish, distrib- temporary standards, community ute, disseminate, circulate, or to offer would find that ap- taken as a whole agree purpose or to do for the same peals prurient sex; interest resale. (B) depicts or describes: (8) “Obscene a device in- device” means (i) patently representa- offensive or cluding vagina, dildo artificial de- descriptions or tions of ultimate sexual signed primarily or marketed as useful acts, perverted, normal or genital actual or for the stimulation of human simulated, including sexual inter- organs.

course, sodomy, bestiality; and sexual descriptions (b) any depictions or If or sec- of sexual conduct described this

(ii) patently competent representa- offensive a court of tion declared masturbation, descriptions or unlawfully tions included jurisdiction to be excretory functions, sadism, herein, invali- this declaration shall not maso- 21. (1979), See, Change Colloquium, as well e.g., & Soc. N.Y.U.Rev.L. Pornography: Violent Degradation the sources cited at n. 17 of this dissent. Speech, Women versus Free Severability. patently

date this section as other herein. offensive sexual conduct included any provision Chapter If this held unconstitutional or invalid rea- by any competent jurisdiction, son court 2. Obscenity. holding such not invalidate shall or other- (a) if, A an offense know- person commits remaining provisions wise affect the of this character, he ing whole- its content and Chapter. possesses promotes sale with intent promote wholesale obscene

or obscene device. (a)

(b) An under offense Subsection punishable by penalty

section is

less than nor more than $50.00 $500.00. (a) day

Each under Subsection offense separate be a offense.

continues shall (c) if, A an offense know- person commits Harry SMITH J. he: and character its content

(1) possesses with intent promotes or

promote ob- any obscene material or L. Freeman KENNARD. device; or scene of Maine. Judicial Court (2) produces, presents, directs an ob- participates performance or in a scene Argued June portion thereof that obscene or that Aug. Decided obscenity. to its contributes (c) (d) under of this An offense Subsection punishable by a penalty of not

section

less than $50.00 than nor more $500.00. (c) day

Each an offense under Subsection separate

continues shall be a offense.

(e) promotes A person or wholesale who

promotes material or an obscene obscene possesses with intent

device or the same promote promote in the or wholesale do presumed

course of his business is knowledge

so with content and

character.

(f) person possesses A six more who or more obscene

obscene devices six

articles, whether such devices or articles identical, presumed

are similar or

possess promote the them with intent to

same. person

(g) apply This section does ma- possesses

who or distributes obscene participates

terial or obscene devices or proscribed by

in conduct otherwise possession, partic-

section when the

ipation, or in the course conduct occurs

of law enforcement activities.

Case Details

Case Name: City of Portland v. Jacobsky

Court Name: Supreme Judicial Court of Maine

Date Published: Aug 6, 1985

Citation: 496 A.2d 646

Court Abbreviation: Me.