City of St. George v. Turner

present to Davis and our case. tions similar Clipper

In States v. One Bow United (1st Cir.1977), Nisku, 548 F.2d 8

Ketch representative of the federal

which is $25,000 view,

courts’ ketch was forfeited marijuana personal for use

when intended noted, on board. The court

was found Congress’ express concern

“While it is true preclude trafficking, this does not

was with conduct was also possibility that other to fall within the statutes.” Id. at

intended (citations omitted). The court remarked harsh,

that while the result was that alone refusal to

did not warrant the trial court’s refusing

enforce the statute as written. statute, the court scope

to limit the stated, “The silent

further statute is transportation purpose for which the

undertaken, and we cannot read such a 11;

limitation into the words used.” Id. at cases cited therein and in Annota-

see also

tion, Forfeitures, 59 Drug Transactions —

A.L.R.Fed. 801-02 therefore follow our recent decision

We majority Davis and the the federal judgment denying

courts and reverse the petition and remand the case

the State’s grant petition.

with instructions to

HALL, C.J., STEWART, ZIMMERMAN, JJ.,

DURHAM and

concur. GEORGE, ST. Plaintiff

CITY OF Appellee, TURNER,

Brent Allen Defendant Appellant.

No. 890620-CA. Appeals Court of of Utah. (argued), Michael P. Zaccheo Salt Lake 6, 1991. June City, Boyack, George, B. for de- Alan St. appellant.

fendant and Shumway (argued), George City T.M. St. George, plaintiff appellee. Atty., St. ORME, GARFF, appear in speakers and front of the sheets in JACKSON Before The photographs. slogans and draw- JJ. appear intended ings to confront and offend, sexual, political, and are related to OPINION religious, portion and social The themes.1 GARFF, Judge: hangings prosecution of the wall George violates the St. ordinance claims INTRODUCTION supposedly portrays reclining a woman in a Turner, appeals Appellant, Brent Allen spread-eagled expose manner her so as to pic- displaying conviction of an obscene his area,” “pubic represented by or four three sexual in depicting ture conduct violation paint spots. The head of black face and George City No. 2-77-2. of St. Ordinance figure could a conceivably be that of We reverse. dog. drawing Next to the the woman is represented en-

what has been to be an FACTS a larged drawing pubic area. woman’s drawn, crudely blurry Both renditions in operated Turner a St. retail business The quality and indistinct. of the render- Utah, vending George, hard rock record compared ings graffiti could to the best small, sign- T-shirts. and Turner’s albums drawings frequently and found on the open during evening hours less store was junior high walls of a school rest room.2 charged violating only. He was with charged violating Turner was St. dis- ordinance for his St. Obscenity George City No. 2- Ordinance painted he play of three bed sheets which 2a(l) por- and 77-2 The relevant hangings visi- §§ used as wall and which were lengthy of this are as fol- tions ordinance anyone entering shop. ble to lows: people made their “artistic” con- Several (1) person knowingly: shall Distrib- No hung on the they to the sheets as tributions ute, display publicly, provide furnish or collage appear The sheets a wall. to be any any person material or obscene slogans consisting drawings of various and performance. paint in sizes and The styles. different Utah, 2-77-2, 2a(l). George, Ord. No. St. § appears sprayed to have been or brushed is defined “Obscene” as pictures slogans appear on. The and crude which, performance or any material some simplistic. and Several factors make in taken as a whole and considered when slogans drawings impossible of the stan- the context quality from the record: discern community: this dards of exhibit, draping photographs sex; sheets, Appeals and the fact that some stereo Ass,” leaving dispute slogans My question, “Your no as to what include "Nuke room for it,” Sex,” Peace,” "Group depict. simply Face “Total Afraid Such is not the [sic] the renditions Dead,” It," Authority," "Burn "Eat "Fuck drawing, in such case. The second described Airborne,” House,” “Kill for detail, "Live-Die "Hell just easily as could be viewed intimate You!,” God,” "Run and Hide Death Will Find leaf, beetle, Or it a or a Zulu war shield. a Soul,” Flys Eat Your Will [sic] “Sold "White closely fugitive might ink blot more resemble a Flesh,” End,” I Dedi- "The “And Unto You Your ("A personality and the Rorschach test from Heart,” "My Right My World.” to The cate interprets intelligence subject ten test in which a peace drawings symbol, include a an MX designs or black colored inkblot standard swastika, missile, gravestones, some some through selectivity his the manner in reveals crosses, symbols prohibitive some international in- factors are which intellectual emotional "drugs,” smiling words "life" and over the tegrated perception sti- in his of environmental skulls, face, gun, with cross several some Dictionary Webster’s Medical Desk muli.” (1986)). skeletons, door, bones, a mush- with full some sufficiently drawings Because the were cloud, and a moon. room permit variety nonobscene so as to abstract interpretations, other rea- and because of the drawings description two 2. The dissent’s judge, opinion, later this looking explic- sons enumerated impression gives one is at an permitted never Gray’s Anatomy, as a matter should have medical illustration from go jury. viewing photograph the area in the issue to an exact forth in a ed States Court set its defi- sexual conduct (2) Portrays manner; obscenity. nition of The standard has been offensive cases,4 re- subsequent and it elaborated artistic, politi- literary, no serious Has distinguishing the mains standard for be- scientific value. cal or speech, protected by which is the tween 2-77-2, Utah, la. George, Ord. No. St. § of the United States Con- First Amendment provides lengthy a definition ordinance stitution, obscenity, which is not con- conduct,” portion of the relevant “sexual speech protec- no such sidered and receives follows: which is as 23, 2614; at at tion. Id. 93 S.Ct. Paris excretion, Masturbation, excretory (2) 49, 54, Slaton, Theatre I 413 U.S. Adult v. geni- the lewd function or exhibition 2628, (1973); 2633, 446 S.Ct. 37 L.Ed.2d 93 tals, any close-up rep- including explicit 476, 485, v. United 354 U.S. Roth organ genital a or of human resentation 1304, 1309, (1957).5 1 L.Ed.2d 1498 77 S.Ct. geni- eagle exposure of female spread a The Miller test is as follows: organs. tal guidelines for the The basic trier of Utah, 2-77-2, George, No. le St. Ord. § (a) average must be: fact whether added). (emphasis person, applying communi- He guilty. now juryA found Turner work, that the ty standards would find grounds his conviction on the appeals whole, appeals as a taken (1) unconstitu- ordinance was interest; (b) depicts whether the work him, ordi- applied to tional as describes, patently way, offensive unconstitutionally vague and over- nance is conduct defined specifically sexual broad. law; (c) applicable state and whether the work, whole, lacks taken as a serious FIRST AMENDMENT literary, artistic, political, or scientific weigh value. required we to In a case where are free- important first values of amendment 24, (quotations at 413 U.S. 93 S.Ct. against charge of obsceni- speech dom of omitted). and citations The Miller test is ty on a statute or ordinance based basically incorporated George into the St. limited, independent

properly we exercise ordinance, except that the ordinance de- determine, as necessary, when review ways specifi- not fines “sexual conduct” of constitutional whether the matter cally Specifically, mentioned in Miller. protected. is to be Jenkins v. material George prohibits display ordinance St. 153, 160, 2750, 94 S.Ct. Georgia, 418 U.S. “any explicit close-up representation of 2755, (1974).3 41 L.Ed.2d 642 eagle spread exposure geni- of female ... 15, Utah, organs.” George, Ord. No. California, v. 413 U.S. 93 tal St. In Miller 2-77-2, However, 2607, (1973), among “plain le. L.Ed.2d the Unit- 37 419 S.Ct. § likely shop, applicable frequent we nors are should 3. First Amendment values "[T]he through suggested apply the States Fourteenth Amendment the lower standard Erznoznik protected by power adequately 205, 209, the ultimate Jacksonville, City v. 422 U.S. 95 S.Ct. independent appellate courts to conduct 2268, 2272, (1975) (discussing 45 L.Ed.2d 125 neces- of constitutional claims when time, place regula- and manner content-neutral 160, Jenkins, sary.” at 94 S.Ct. at 2755 U.S. However, speech). the St. tions of ordi- 25, 15, California, (quoting 413 U.S. time, regulate place, nance fails or man- 2615, (1973)). 37 L.Ed.2d 419 See S.Ct. also, sexually may explicit ner that material be dis- Jenkins, 163-64, 418 U.S. 94 S.Ct. at 2756 at instead, played, places but a content-based (Brennan, concurring). J. sexually any display explicit restriction on Consequently, apply Arcades, material. we must example, Spokane 4. Brackett v. For Miller, Inc., U.S. stricter test set forth in U.S. interest): (elaboration Additionally, shop S.Ct. 2607. because Jenkins, (elaboration evenings, only open 94 S.Ct. 2750 and is when unmarked standards). community session, appear is not in it does school especially likely frequent minors are that, argues prosecution because shop. shop mi- is near school and because record at 413 U.S. court as to law.” given by the Miller examples” define for or ordinance can a statute what con- offensive sexual

regulation patently determining appeals to When what geni- the “lewd exhibition duct was prurient interest and what is tals.” offensive, is not allowed unbridled that, the defini- insofar as 2615. We find Georgia, discretion. Jenkins “depict or de- materials that tion describes L.Ed.2d ‘hard core’ sexual patently offensive scribe judge signifi The trial has a con- as that sexual and insofar defining conduct” cant role in the extent of the test, “Application muster under the Miller of the ob passes jury’s duct discretion. 1(a) subjective ele scenity of the standard involves a it must under section which part judge, ordinance, ment on the is within constitu- the ordinance tribunal — making jury or the critical determi 160, Jenkins, 418 U.S. at limits.6 tional both— States, 470 nation.” v. United Miller, 413 at (quoting U.S. S.Ct. at 2755 Huffman (rev’d 386, (D.C.Cir.1971) F.2d on other 2616). 27, at 93 S.Ct. (D.C.Cir.1974)). In 502 F.2d 419 grounds, addition, subject to inde jury discretion is INTEREST AND PRURIENT review, necessary, pendent appellate when PATENTLY OFFENSIVE only depictions by requirement analysis core con prong The first offensive hard sexual Jenkins, subject prosecution. of fact to determine duct be requires the trier “ 160, at There 418 U.S. at 94 S.Ct. 2755. ‘average person, applying whether the fore, Jenkins, did not Supreme in Court community standards’ would jury, province to invade the whole, hesitate work, ap- taken as a find that the had re Georgia Supreme Court which prurient interest.” Miller v. peals to the verdict, overturning the to do. fused 2607, 15, 24, 93 413 U.S. S.Ct. California, jury that the did Supreme Court ruled (quoting Roth to determine that not have sole discretion 476, 489, v. United obscene, Knowledge was the film Carnal (1957)). 1304, 1311, 1 L.Ed.2d 1498 5.Ct. judgment for that and substituted its in- appeals Material that because, concluded, “simply it it was pro- not include “material terest does hard-core sexu ‘public portrayal of not the normal, de- healthy sexual voke[s] sake, and for the for its own al conduct Arcades, Spokane sires.” Brockett v. gain’ said ensuing which we commercial 491, 498, Inc., 418 U.S. at punishable in Miller.” was Rather, 86 L.Ed.2d (quoting provokes “sexual to material that applies 2621). Thus, there 93 S.Ct. at beyond those that over and responses of “hard-core threshold a constitutional normal.” Id. characterized as would be must met. ness” that be may be constitu- “prurience Specifically, or ordi only must the statute Not purposes of iden- tionally defined for explicit, constitutionally but nance be to a appeals as that tifying to make a responsibility trial court has sex....” or morbid shameful as to whether determination threshold at 2802. Id. at conduct. depict hard-core sexual may work analysis reached this con prong of the Miller the court has Only The second after describes, the matter appropriate to turn depicts or is it the work clusion is “whether first two apply the way, sexual conduct over to patently offensive in a Accordingly, test.7 of the Miller prongs state applicable defined specifically the distinctions commented on grounds, we do on other Because we reverse court depiction overlapping roles of the trial at issue whether the between the not consider though con jury. was lewd. Even and the Ramirez eyewitness identi admission cerned with the fication, Ramirez, case, 159 Utah State v. In a recent appropri court’s comments we find the — — (1991), Adv.Rep. the Utah P.2d Brockett, 472 U.S. at the trial court correct- S.Ct. we consider whether con- ly pretrial finding threshold determination made the 2802.9 The trial court’s court, Jenkins.8 in its templated “arguable is not suggestion” an sufficient dismiss, pretrial denying a motion to order test, to meet the constitutional our own drawing de- that “the words found leads us to the evidence the con arguably act suggest herein scribed that, clusion as a matter of these constitute a violation of the which would renderings “public portrayal[s] are not ordinance, i.e., oral-genital an act of con- sake, hard-core for its own sexual conduct tact.” ensuing gain.” and for commercial Jenkins, drawings spray painted While 418 U.S. at S.Ct. at 2755 representations genitalia, depict (quoting crudely

drawings too rendered to be 2621). provoke titillating or to sexual salacious or Moreover, judge drawings we cannot less responses, healthy, normal much isolation, also but must consider beyond that are “over and those that those symbols other written material be- characterized normal.” would Miller requires cause to us view the col- Brockett, 498, 105 472 U.S. S.Ct. at 2799. lage determining “taken as a whole” its may necessary give else be to “Whatever appeal to interest. the U.S. at power prohib rise to the States’ broader to Wisconsin, In Kois v. 93 S.Ct. at 2615. expression, expression it such obscene 408 U.S. 33 L.Ed.2d 312 S.Ct. be, significant way, in some erotic.” must (1972),10 the Court considered the California, 15, 20, Cohen U.S. allegedly context in which an obscene work 1780, 1786, (1971). 29 L.Ed.2d 284 S.Ct. Kois involved displayed. publica- was the arresting officer much at admitted as photograph embracing tion of a of an nude though the drawings trial. Even are vul couple, by similar to one confiscated offensive, confrontational, Wis- gar, they and attorney. consin district Because the ac- sketchy appeal and abstract to “to are too the companying or morbid in sex.” article was about confisca- shameful enough the trial court to make a alone "is to make [it] ate here where not ‘obscene.’” 478, 490, preliminary Day, of Manual determination when Enter. v. 1432, 1438, by be issue will have to redetermined that same jury when the evidence considered: the protection 9. “The for First Amendment the de- role confusion Potential for and for erosion piction applies even of nude women ... where guarantees of constitutional inheres this pictures upon pubic the focus areas and overlap responsibility judge jury and to way poses emphasize are struck in such a as to the same issue. determine Because Huffman, genitalia." the female 470 F.2d at by judge’s preliminary factual not bound 401. ruling made in on admissi- determination may bility[/obscenity] the trial court be Although preceded 10. Kois fre- Miller charge tempted gatekeeper to abdicate its as quently approval, indicating cites the case with carefully proffered to scrutinize evidence analy- an intent decision and to reaffirm the its may simply defects and admit constitutional 23, 24, 25, 26, 35, 37, sis. evidence, leaving questions pertinent all 2614, 2615, 2621, Also, S.Ct. the test in jury. reliability[/obscenity] to the But its average person, apply- Kois was "to the whether properly sidestep responsi- cannot their courts standards, ing contemporary community perform required bility constitutional of the material dominant theme taken as a admissibility[/obscenity] analysis. do so To Kois, appeals whole interest." protection rights would leave constitutional (quoting U.S. at Roth v. jury and to the whim of a would abandon United 1311, apply responsibility to courts’ the law. (1957)). Although 1 L.Ed.2d 1498 this phrase phrase they implies 8."Judges care that the Kois "taken as a ... must take lest decide part simply indigna applies whole" test, to the first on the basis the Miller these cases of their disgust present allegedly the kind Kois was whether an tion and of trash crux of trash, political depiction obscene value. ed. The First Amendment extends to if had We think helpful stops obscenity....” Huffman, analysis Kois as a whole” is short of of "taken though piece may prongs "dis in both and third of the Miller F.2d at Even be the first mally unpleasant, tawdry,” uncouth test. and offensive, drawings ra- tion, picture ly held was because the Court protected. Laying collage, thus relate to the newsworthy tionally rest of the the which, whole, for what later be would taken as a is not foundation analysis, prong of appeal pru- third offensive and does not redeem an interest, held that context could find drawings rient we picture there is where otherwise obscene are not violation the St. ordi- the of- relativity contextual between some nance.

fending portion and the rest of the work: therefore reverse the conviction. We flyleaf from quotation “A Voltaire redeem an constitutionally not a book will publication.” J., ORME,

otherwise obscene concurs. held 92 S.Ct. at 2246. The Court JACKSON, Judge (dissenting): “rationally picture that because was and “relevant to the theme of the

related” article,” “clearly protec- it was entitled” INTRODUCTION Id.

tion. I affirm Mr. conviction. would Turner’s Here, drawings appear the two do peers tried of his He was materi- attempt to insulate a sham obscene guilty violating found an ordinance is, while protected al with material. That constitutionally specifically defined may drawings more confronta- the two Mr. provid- materials. Turner was obscene vulgar appears than on the tional what hu- fair notice that lewd exhibition of ed bedsheets, entirely they rest are not George public, in- genitals man to the St. depictions of of context with the other out female cluding spread-eagle exposure of musical, and political, philosophical, social organs, bring prosecution. genital would is a col- sexual themes. Because the work California, relationship is not a lage, there close (1973) pro- L.Ed.2d among slogans symbols. How- all and examples “plain of what a state stat- vides ever, require- relationship is not the a close ob- city could define ute ordinance] [or [as Kois, ment; relationship a rational is. One of Mil- regulation_” scenity] for 92 S.Ct. at 2246.11 examples of ler plain ’s “hard core” sexual the Kois test drawings The two meet representation “lewd exhibi- conduct is rationally imme- they to the because relate trial Id. genitals.” tion of (the hangings) and to the context wall diate reasonably judge determine that could (the store). The context record broader constitutionally prop- a ordinance contained collage context is a of various immediate definition and specific er and phrases. context symbols and The broader spread- of the nude that Turner’s exhibition a hard rock record store which is that of separate enlarged de- eagle female and a music, heavy metal music vends open la- vagina, exposed with tailed vulva intended, part, challenge in to traditional the con- clitoris was violation of bia and thinking. modes of ideas and Accordingly, stitutionally valid ordinance. concede, Therefore, if to even we were judge properly the case the trial submitted not, key draw- do that the two which we denying jury for after to the determination and are ings appeal to the on pretrial motion dismiss based a offensive, we see how cannot drawings of Turner’s and submission whole, is so. collage, taken as a entire The the materi- city ordinance. saw conclude, als, evidence determined heard the and as a matter Because we appeal materials were and drawings do not Turner’s obscene themselves that the mem- displayed them to unwarned patent- he had interest and are to the Literary, "rationally Obscenity: Artis- phrase Serious use Miller Test Kois Court's of the 11. The Political, Value, integration tic, suggests low be- a level of 11 S.IU.Univ. related” or Scientific offending picture larger con- and its tween 1163-64 L.J. Main, Prong Neglected See E. The text. pubic hair city- upper The half of the vulva of the public in violation bers immediately right depiction is ordinance.1 question. lines in the Between three “Tuna and the nude woman is: question FACTS green Factory x x x x” inscribed a “facts” in the main The statement of nude over her head. Between the banner subjective treatise opinion reads like a sign post is a small woman and vulva assessing quality of appreciation, art “Tunnel of Love” and a with the words “crude,” “simplistic,” Turner’s art work as points sign from the yellow arrow “abstract,” “blurry.” “indistinct” pubic hair. lower half of the vulva However, adjectives is irrele- this attack of are the the vulva and hair Underneath has not indi- The vant. right of “Keep Out” in red. To the words mature, tasteful, high quality cated that and hair in black are words: the vulva that un- suppressed or obscenity should be “It’s immature, tasteful, quality obscenity low Mine regulation. the oth- go On should without All Mine” hand, recognize opinion does er drawing in fact “a woman “indistinct” upper half of the sheet has these slo- (facing reclining spread-eagled in a manner (left “My top right): gans across the viewer) expose pubic her area.” so as to World,” (sic) Afraid Right to the “Your recognizes drawing also opinion For Yourself” and a Face It” and “Live large depiction of a next to the woman as “Drugs” it. inscribed on round bomb it as pubic area but evaluates woman’s across the low- these items and Underneath highly “blurry.” These observations (left right) portion upper half er (in drawing “blurry” This shades relevant. swastika, “13,” skull, happy are a graphically depicts all of pink) red and face, with “AA” on it. shield genitalia. female This vulva the external pubic hair by depictions is surrounded OF APPELLATE REVIEW SCOPE “Genitalia,” the word in done in black. jury’s majority disposes of the ver- The ordinance, Miller and the St. (with- by virtue of a “hard core” attack dict organs, especially reproductive the means core) defining by use of a out hard organs. The American the external sex scope appellate of “loose” definition of the College Edi- Dictionary, Second Heritage opin- mounting in the attack. Their (1985). Despite majority’s the tion ion, citing Georgia, 418 U.S. Jenkins 2 that Turner’s de- protestation in footnote 2750, 2755, 153, 160, L.Ed.2d else, something might resemble pictions (1974), jury that “the is not states they were a nude Turner testified that making in its discretion” unbridled allowed “girl’s enlargement an of a woman and majori- Then the obscenity determination. vagina.” ty demonstrates claims Jenkins depiction occupies the Turner’s vulva should “not hesitate to appellate the court side) (side the sheet with center of the jury” and to province the invade center of the sheet top of the vulva at the jury’s judgment” for the “substitute its bottom). the the lower half of (top to On jury have because the “does not judgment occupied by the sheet, left third is the obscenity the de- discretion” to make sole the nude woman question words of scope I first discuss of termination. will done in black question The underneath. then address the appellate review and yellow is: over “average meaning “hard core” and the Let “Why Not pos- response in to the above person test” One Else Some my in opinion. Later turing of the main opinion’sback- opinion I will reach the main Think For You?” regarding jury properly instructed jury that the was accepted instructions Since Turner the constituted," applicable exceptions, law. I must conclude no "as rights. The are of Turn- tutional other tests up regarding the context position requiring a mainly questions taken a whole.” er’s work “as of fact rigid less standard review. not have jury that the does unbri- agree I added). (emphasis I Schauer obscenity case. But dled discretion colleagues my appellate do note that also recognize majority the fails to Because on discretion review. not have unbridled review, appellate proper scope legal is to restrict both Our function Thus, question. wrong answers determinations constitu- and factual analysis adopts a Turn- quickly finding that in Miller. Mil- guidelines set forth tional not “renderings public portrayals er’s are obscenity— ler states that elements conduct”, i.e., the ren- of hard core sexual interest, prurient patent offensiveness and derings function is are not obscene. Our to be determined lack of serious value—are question not to of whether answer fact, i.e., jury. by trier of ma- Turner’s materials obscene—as 9; & n. n. 93 S.Ct. at 2616 see 26 & jority Our function is to answer has done. States, v. United also Smith question of whether Turner’s materials question obscenity as created a —as Further, pat- interest and majority done. by to be measured ent offensiveness are The each appellate court should review average person of an the com- the test determine as to that Miller element and contemporary community munity applying cre- has been element whether issue standards, discuss in which I will detail Instead, majority disposes ated. jury’s give we find- below. must obscenity by of their jury’s verdict exercise ings on those elements a fair measure of judgment. core” own “hard deference, particularly in a close case. does not mean that convic- That Judgment A. “Hard Core” virtually will be unreviewable. tions Smith, Court of Huffman, the United States But, “[djeterminations correctly Appeals ob- for the D.C. Circuit also, offensiveness, patent there- prior served the United States fore, community stan- Supreme had not the term Court defined dards, are such to indicate that pornography.2 “hard core” Huffman made major should be determination F.2d n. 9 United jury, except the more extreme cases.” (D.C.Cir.1974). rev’d, 502 F.2d Schauer, Obscenity F. The Law at 150- core” did not define “hard (footnotes omitted) [hereinafter specific forth in Miller which set until 1973 the serious value element Since failed to examples. Schauer]. If material which has person” “reasonable by is to be measured a obscenity looks tests for pass the Miller standard, this determination more ame- ex- something like different than Miller's Smith, appellate to review. See nable judge has amples, or trial then 305, 1766. at 97 S.Ct. at U.S. of at least one application erred opinion main tests. at 113. The significant to note the further Schauer is also [I]t 153, 418 U.S. Georgia, relies on of Jenkins [Hamling indication this decision 2750, 162, 2756, 41 L.Ed.2d 642 States, 87, 2887, S.Ct. 418 U.S. S.Ct. United (1974), obscenity of its determi- although that all basis ] nation, drawings do holding that Turner’s Supreme elements Court’s of depict conduct. “hard core” sexual ba- obscenity tests have a constitutional the mean- fails to examine opinion But the sis, only value standard is the [serious] exam- ing core.”3 before of “hard really question fundamental consti- a of support scope of opinion Huffman, pre- utilizes position. to its on main relies Huffman language pre-Jenkins case for circuit Miller and pornography argu- support its "hard core” to holding "no one under Miller its states Further, opinion nn. 7 See & 8. ment. prosecution the sale or subject will be to announced,” Jenkins, (b) part I of the standard light in the ining case our is, requirement patent offensive- meaning of definitive for the turn to Miller S.Ct., Id., at at 2615. These ness. core.” “hard “representations examples include or de- first time since “for the states acts, scriptions of ultimate sexual normal Roth United [v. simulated,” perverted, actual or was decided 1 L.Ed.2d S.Ct. 1498] descriptions “representations or of mas- agreed majority of this Court turbation, functions, excretory and lewd to isolate ‘hard guidelines on concrete Ibid. genitals.” exhibition expression protect- from pornography core’ an ex- purport did not to be While this Miller, 413 by the First Amendment.” ed juries might catalog of what haustive add- (emphasis at offensive, certainly patently find it was ed). guidelines include concrete The Miller substantive constitu- intended fix core” materials. One examples of “hard limitations, deriving tional from exhibition of the examples is “lewd those Amendment, type on the mate- First at 2615. This genitals.” Id. at subject to such a determination. rial very example as “hard core” isolates wholly at odds with this It would be ordi- materials described St. uphold aspect of Miller by Turner. His de- nance and exhibited upon de- based a defendant’s conviction genital descriptions pictions and consist piction midriff, of a woman with a bare Miller, imagery and sexual conduct. Since though properly charged jury even conduct does not depiction of sexual unanimously agreed on verdict activity.4 necessarily require motion or guilty. plain that “we made it states Jenkins holding ‘no one will be 160-61, under that Jenkins, ] 418 U.S. at [.Miller expo- for the sale or subject prosecution added). (emphasis was Jenkins ma- materials unless these sure of obscene case is not. Mil- midriff” case. Our “bare patently offensive depict terials or describe or mere not mention bare midriffs ler does ” Jenkins, sexual conduct....’ ‘hard core’ specifically defines lewd ex- nudity. Miller (emphasis 94 S.Ct. at 2755 “genitals.” This is our case. hibition of the added) (quoting Court viewed Jenkins 2616). Knowledge and observed: film Carnal following reiterates the defini- picture Jenkins subject matter of the While the forth in of “hard core” as first set sense, sex, tions is, and there are in a broader Miller: including sexual conduct scenes which under- “give a “ultimate sexual acts” is pains took in Miller to

We also taking place, the camera does state stat- stood to be plain examples of what a few of the actors at not focus on the bodies regulation define for under ute could (b) Patently representations or de- exposure ma- offensive of obscene materials unless these masturbation, excretory 'hard depict scriptions tions, or describe offensive func- terials specifically conduct defined genitals. core’ sexual regulating and lewd exhibition of law_” U.S. at state it clear that This definition seems to make “Depict" present means to S.Ct. at 2616. 93 lifelike things pornography may include hard-core II, image Roget’s The New Thesaurus of. congress activity, than actual sexual or other give “Describe" means to a verbal contrary of other to the views of a number Id. at 250. "hard core” sexu- account of. prior seemed to Miller. These views courts presented images or words. al conduct can be York, Redrup primarily New [v. based on 386 U.S. (1967) 87 S.Ct. has stated: 4. Professor Schauer Court, Supreme since reversals of ] however, spe- Court In years after the Court for a number of cifically only depiction of stated any obscenity where the reversed conviction may prohibit- be "hard-core” sexual conduct activity, included, display actual sexual material did not might examples ed. As of what poses regardless suggestive following: the lewd or of indicated the the Court (a) Patently representations or de- offensive individual models. acts, or scriptions ultimate sexual normal Schauer at 111. perverted, actual or simulated. drawing supposed very-en- as: “It’s to be times. There is no exhibition such girl’s larged pubic of the area” genitals, portion lewd or and actors’ whatever of otherwise, girl’s represents scenes. There the “tunnel of love” “a during these nudity, depictions vagina.” scenes but nu- Turner’s are a form of are occasional enough pornography is not to make mate- hard dity alone core well within the legally proscribed under Miller types permissibly depictions rial obscene George and standards. set forth in Miller the St. ordi- Accordingly, nance. Turner’s materials (emphasis 94 S.Ct. at 2755 add- Id. at clearly present were sufficient ed). obscenity. promised, issue I as to As now film Having depicted that the observed turn to of the further consideration aver- “genitals”, and “nudity” not Su- age person majority test because the not, preme held “the film could given proper not deference to this test and be found as a matter constitutional personal judg- has substituted their own depict sexual conduct in a of- the jury. ments for that of 161, 94 way_” S.Ct. at fensive Id. tell 2755. Miller both us what Jenkins Average The Test B. Person core,” i.e., as lewd can be defined “hard genitals. tells us exhibition Jenkins Applies Test Prurient Interest and thing that can considered “hard one not be Elements Patently Offensive core,” i.e., simply a bare midriff. Jenkins replaced suscep- the “most Roth grant my colleagues on does not discretion person tible” test of with the hold as a of constitutional review to matter test. “average person” Miller reaffirmed depictions Turner’s law that exhibition reciting this test Roth: clearly genitalia of female ob- were not guidelines The trier of basic for the fact scene and did create an issue for the (a) per- average must be: whether “the jury. contrary, To the Jenkins son, contemporary community applying proposition George St. stand for the work, would find that standards” define, prohibit as “hard core” could whole, appeals taken as obscenity, geni- lewd exhibition interest. only by “representation.” if tals—even Miller, 413 U.S. at Roth, 489, 77 S.Ct. at (quoting adopted ordinance the Mil- St. 489). ler definition. Professor Schauer has stat- rejected a national Miller Court ed: an exercise in “community standard” as now, after it is clear that But futility. doing, relied on In so the Court may pornography include ma- hard-core Mr. Chief Warren in the dissent of Justice acts, depict terial which does not sexual Ohio, Jacobellis v. genitals” is and “lewd exhibition which stated: 12 L.Ed.2d in- specifically included. This should be constitutionally realistic It neither nor terpreted light of a.number Amendment read the First defining por- hard-core sound to lower court cases Maine people or requiring that nography photographs to include accept public depiction con- on, exaggerate, emphasize Mississippi or focus Vegas, Las or duct found tolerable in “erogenous zones.” It genitalia different City. People in “highlight” New York exaggeration or on the this attitudes, in their tastes and distinguishes vary States which often hard- genitalia strangled diversity is not to be nudity. and this pornography from mere core imposed uniformity. by the absolutism at 111-112. Schauer 200, at Jacobellis, 84 S.Ct. 378 U.S. to elected exhibit materials which Turner omitted). (citations genitalia, one highlight amplify female rationale, the the In above specific examples “hard accord of Miller’s obscenity held “that fact, Turner described the vulva core.” ex- judgment this factual is to be ‘contemporary Because by applying determined standards’, juror, prosecution the peer the community ‘not national stan- ercised 31-32, produce “expert” witnesses to 413 U.S. at 93 S.Ct. need not dards’.” analyzed obscenity. Kaplan stan- testify this new as to at 2619. Miller Califor- 121-22, 2680, nia, 115, inter- the dard in relation both 413 U.S. S.Ct. (1973). patent 2685, tests. juror est and the offensiveness L.Ed.2d 492 rigid require a less any expert Both of those tests who the aver- knows as well as they princi- are standard of because the age person is and what jurors of fact. The are to pally questions community are. Paris standards See average the apply 49, 56, this standard as would Slaton, I v. 413 U.S. Adult Theater Accordingly, community. in person (1973). their 37 L.Ed.2d 446 93 S.Ct. analytical process is as follows: jurors’ the Court has stated: determine, knowledge of from their own juror A is entitled to draw on his own average community, sense of the the average knowledge of the views of the community; determine person in the community vicinage in person knowledge from their of the communi- own making from he comes for which standards; (3) community ty contemporary determination, required just as he is enti- ques- in apply those standards to work knowledge of the tled to draw on his regarding appeal judgments make tion and person in propensities of a “reasonable” patent offen- other areas of law. judgments by If these siveness. Hamling v. 418 U.S. United affirmative, the work is obscene. 2887, 2901, 104-05, 94 S.Ct. nega- in judgments If either of these Smith, (1974), quoted in Thus, tive, is not obscene. work 97 S.Ct. at 1764. value element of Miller the serious requires juror tap each This standard question regarding fundamental presents a knowledge his or her of his or her commu See, rights. e.g., constitutional Schauer nity deciding obscenity in what conclusion obscene, then 125. If the work is community, ap in average person value determines whether has serious standards, contemporary community plying by apply- would save it. This is done particular reach in a case. would person ing Pope the reasonable test. formidable, appellate judge if not Illinois, task, guessing ju in (1987). impossible second L.Ed.2d 439 personal ror’s draw on his or her “knowl Average Person 2. The edge community.” How does the appellate judge divine the sense of the av mysterious average person? Who is the community where erage person a distant immune nor He or she is neither the most appellate judge does not reside or has susceptible. “[Ojbscenity the most is to be little, knowledge of com any, personal if average person in according to the judged Expert to draw? munity mores on which community, prud- rather than the most required. Not ‘the cases witnesses? “[I]n ish or the most tolerant.” Smith v. United in which this Court has decided 291, 304, States, 431 U.S. Roth, regarded questions it has since 1766, 52 L.Ed.2d 324 The Miller materials as sufficient themselves opinion primary stated the concern re- ” question.’ Kap the determination quiring jury apply this standard is that lan, (quot 413 U.S. at S.Ct. judged by impact the material “will be its States, 383 U.S. ing Ginzburg v. United average person, partic- than a on an rather 942, 944, L.Ed.2d person ularly susceptible or sensitive —or (1966)). In the local statute? How about totally indeed a insensitive one.” evidence, Helpful troduced here. but at 2620. I note the local statute on obsceni continuing emphasis that it is the individual conclusive. “[T]he of the mores ty provides the standards of the relevant evidence juror must divine who legislative body community. community whose average person in the local Smith, average person the test jury applied law.” enacted the did Mil- held, community contemporary standards at 1767. Smith as under ler, and prurient Again, that the issues of found in the affirmative. the and questions fact offensiveness “are patent definitively the majority has not answered light in the judged jury, the to be for a jury question of had question whether contemporary understanding of jurors’ Instead, these created on issues. the been 300-01, 97 Id. community standards.” acknowledging majority, without the “aver- the we see that at 1763-64. person” simply test their age substitutes qualified to exercise this uniquely judgments judgments for the ex- individual i.e., average per- the judgment, particular summarily ercised and an- community applying son findings (dressed their factual nounce own They “consider the entire must standards. law) up negative as conclusions their sub- community simply and not own stating: reactions, a sen- or the jective reactions Because conclude that draw- we ... Id. minority.” sitive of a callous ings appeal do themselves not to the case, my in this S.Ct. at 1766. And prurient are not interest and colleagues have little evidence appellate drawings ra- offensive and because the community standards other than local tionally collage to the relate rest has exer- juror’s judgment which been taken a whole ... we find the ... as Here, commu- cised.5 the basic evidence of drawings are not violation the St. juror’s personal nity mores was each George Ordinance. knowledge local and the St. standards George ordi- The St. ordinance. Miller definitions nance contains A“AS TURNER’S WORK WHOLE” obscenity. The ordinance is sub- hard core majority Turn- Since the concluded that community evidence of a standard stantial require- core” work failed the “hard er’s depicted genitalia lewdly will not be ment, have been the end of should elected displayed public. Turner Georgia, Jenkins opinion, as in to the genitalia, proscribed, as to exhibit (1974) on including public unwarned members of the Nevertheless, opinion they rely. which place of juveniles who entered his business. work from the to further save the core tries public His exhibition of hard materials by analyzing obscenity determination jury’s questions jury regarding for the created “as a Turner’s work whole.”6 patent interest and offensiveness. embracing couple ostensibly photo nude called witnesses included 5. The defense four testify community poem regarding poems One standards. included a book of which ” magazines purchased had some "mens' describing sexual intercourse. County. Washington some convenience stores in Second, pre-Miller, "national” Kois was a since in St. Another had seen “R” rated movies George, including case, community Court’s standards Deep, Love and Sea Skin scope of was than would broader no rated movies. One indicated that but there “X" community applying stan- post-Miller, "local” literary works available in Southern were dards. word, last Utah contained the and the which "F” Third, analytical requires a different century place of in 20th art. described the nudes poem applied approach was in the sex than “expert "experts” nor None testified stated There, Court looked at of Kois. section opinions” regarding community standards. question poem "artistic” value art.” be in the realm of “serious considered it to majority tries to work from 6. The save Turner's jury’s obscenity by relying decided domi- premise, determination From per appeal completely case of poem on the curious curiam did nant theme of Wisconsin, Kois "serious value" Under Miller interest. analysis. its "as a whole" L.Ed.2d 312 after is examined last of the work problems this reliance on I observe some patent prurient interest and work failed Kois. so, ex- If value" is tests. "serious offensiveness First, pre-Miller was a Kois is Kois case. value work has determine if the amined to analy- using divided into two sections different it. which can save separate dispose of two criminal offenses: ses to (1) newspaper underground article 1200 pornogra- attempt to shield commercial Perception or Unit of

A. Context phy legitimacy. in a cloak of book, a have dealt with Obscenity cases at 106. Schauer cartoon, article, movie, magazine bro- any to articulate text Turner was unable chure, What perception.7 unit of each as a painting for the materials on his or theme logical is the displayed by Turner material of the nude and vulva. His testi- exclusive prosecution of- The perception? unit of mony he had no clear theme. reveals that per- as units of separate fered sheets two sure, paint- he his He was not but believed material. depicting offensive ception each political commentary.” ing “resembles of the sheets testified that one Turner concedes that Even Turner’s brief contained, slogans and among other admittedly diffi- theme of his “bed sheets is “Group depictions, the words Sex” Thus, identify precisely.” jury, cult to years It, prepared four “Eat Eat Me” was “average person test” could applying the Halloween motif. Ac- part earlier as of a objectionable reasonably conclude that the any time relation cordingly, it did not bear descriptions depictions sexual could not de- relation to the other sheet or context other materials on the possibly relate to the Further, Turn- picting nude and vulva. themeless, i.e., they sheet because were argued to the trial court that er’s counsel Further, collection of ideas. even diverse “totally” separate and the two sheets were if the other materials set forth a clear opinion dis- different works. The main theme, reasonably “political” jury could view and identifies Turn- regards Turner’s that the “sexual” materials had conclude store,” including the er’s “hard rock record Moreover, nothing politics. to do with hangings, “collage” as the unit of wall Turner testified that the two sexual since agree I Turner and his perception. placed the first materials depictions were logical perception unit of counsel that (and add- on the sheets the other materials sepa- each of Turner’s sheets as is to view related, had no theme or were not ed later paint- “paintings” rate or works. Turner’s theme), jury could have they if had a (sheet depicting the nude female and ing the materials reasonably concluded that vulva), my in detail in “facts” described top indeed a added to the of the sheet were above, percep- is the work or unit of section attempt by Turner to insulate or sham Thus, single in this case. tion at issue (the material lower half of shield obscene “taken as a sheet is the “work” be sheet) material. with non-obscene analysis. whole” identify a dominant Turner could not not, he could had a theme.8 Since B. Dominant Theme that Turner’s on which to conclude basis judge, asked trial question merely a sham materials were “themeless” judge appellate is: attempt “objectionable” his ma- insulate terials. objectionable are whether the materials occur, example, if the text or other materials which This would

related to in- constitutionally protect- most obscene items conceivable were are themselves the books of the ed, other materi- serted between each of or whether the text [or existing But under merely asserted as a sham to Bible. als are] judge, jurors appellate U.S. 94 S.Ct. 41 and the United 418 7. The trial brochure). (1974) (advertising complete judges "work” as a L.Ed.2d 590 should observe generally Kaplan perception. v. Cali unit of See fornia, relationship” 93 S.Ct. 37 L.Ed.2d majority creates a "rational (1973) (book); Georgia, U.S. among "political, philosophical, Jenkins v. Turner's diverse (1974) (mov musical, by calling 41 L.Ed.2d social and sexual themes" Intern., ie); McAuliffe, entirely collage. Ltd. v. Penthouse several un- his work a dismissed, (5th Cir.), F.2d 931, cert. made the "dominant theme” related themes are majority L.Ed.2d 1131 as the "context.” with the store Curators, depictions, part (magazine); Papish Accordingly, v. Board the offensive context, large simply collage, L.Ed.2d 618 in this i.e., curiam) cartoon); meaningless, Hamling not obscene. (per (political identify are able judges juries material is in which non-obscene

shams as a insulate obscene

used vehicle Ginzburg, As established

material. quanti- is not “taken as a whole” test Miller, even one obscene

tative. Under in a work would be suffi- contained

item finding that the entire support

cient to if,

publication obscene “taken as

whole,” publication lacks serious val- is not The “taken as whole” test

ue. recognition of

inconsistent with the

shams. Intern., Ltd. McAuliffe,

Penthouse Cir.1980) (footnote (5th

F.2d

omitted). Utah, Appellee, Plaintiff and

STATE of PERDUE, Wayne

Terry Defendant Appellant.

No. 900081-CA. Appeals of Utah.

Court of

June

Case Details

Case Name: City of St. George v. Turner

Court Name: Court of Appeals of Utah

Date Published: Jun 6, 1991

Citation: 813 P.2d 1188

Docket Number: 890620-CA

Court Abbreviation: Utah Ct. App.