*1 eight persons The “orgy” least attendance. at of- with depicted masturbation, fellatio, included conduct cunnilingus, of mechanical devices and use intercourse groups. camera homosexual heterosexual both - periods genitals extended of time. on often focused represen- saying have no hesitation We geni- of the exhibitions the sexual acts and lewd tations offensive. v. California, tals were any films contained modicum find these 25. Nor do we regardless of the obscen- of our view value. ity sense, Timmons is constitutional of the under the trier of facts a determination entitled to Roth-Memoirs test. necessary light disposition case, it is of our assignments error. Timmons’ other
to discuss trial. Reversed and remanded for new Pearson, C.J., J., Petrie, concur. rehearing denied 1974. December
Petition by Supreme Court March 1975. denied Review Two. November 1974.] 1133-2. Division [No. Respondent, City M. Alexander Tacoma, Appellant. Mushkin, 57- *2 Victor V. Hoff, appellant. Hamilton, City
Robert R. Bar- Attorney, William J. and ker Jr., and F. H. Chapin, Assistants, for respondent.
Pearson, C. J.J. —The defendant was convicted willfully and movie knowingly showing obscene entitled “Refine in Love,” ments in violation of Tacoma Ordinance City 17, August 8.32.020. On 1971, after a voluntary private to a showing municipal judge, defendant was arrested and and the film charged, was seized. After convicted being in Court, the defendant Municipal was a granted trial de novo a jury Superior before Court. On January 1973, 18, he again was convicted. The defendant sentenced to 90 days jail and fined $300.
The Tacoma defining obscene material1 ordinance the decisions in Roth v. United States, patterned after City 1Tacoma Ordinance 8.32.010defined “obscene material” as “ma (1) which, terial whole, appeals has dominant theme taken as a prurient sex, patently (2) to the interest is offensive because it contemporary community relating description affronts standards to or representation matters, utterly redeeming sexual and is without social value.” “foul, same section defined filthy, “obscene” disgusting, as chastity modesty, expressing presenting or offensive or to the mind something delicacy, purity or decency view forbid to be n exposed.” . jury properly which convicted the defendant was instructed as to the terms of the ordinance!...... (1957), Ed. 2d Ct. 1304 S. U.S. Massachusetts, 16 L. Ed. 2d Memoirs v. decisions, ele- these three Ct. 975 Pursuant order make a determination ments must coalesce obscenity: (a) dominant theme
[I]t must be established appeals prurient inter- taken a whole the material (b) sex; the material is offensive because est it affronts contemporary community relating to standards description representation of matters; utterly (c) value. Massachusetts, 418-19. Superior conviction in after defendant’s months
Several nearly years allegedly after his criminal con- Court, and Supreme in Miller Court, occurred, the duct rehearing Ct. 15, 37 L. Ed. 2d 93 S. U.S. *3 94 Ct. 26 128, L. Ed. 2d S. denied, 414 U.S. 38 obscenity. The for court the Roth-Memoirs test abandoned agreed subsequent to Roth was no formulation noted that majority by Mem- indicated that the court, a prosecu- It commented that the “unworkable.” test was oirs “ ‘utterly proving is with- tion’s burden ” virtually impos- “a burden value’ is out proof.” discharge our criminal standards under sible to supra 22. formulated at The court then California, Miller v. obscenity: tripartite test for a revised (a) guidelines the trier of be: for fact must The basic contemporary average person, applying “the whether community work, find that the taken standards” (b) prurient appeals interest, to the ... whole, a depicts describes, or of- the work whether specifically way, defined conduct fensive (c) law; work, whether the taken as applicable state literary, political, artistic, or scien- serious whole, lacks tific value. supra 24.
Miller v.
phase
agreed
generally
that the third
is
It
permissive test
a less
offers
obscen-
formulation
Miller
ity
e.g.,
than
existed
the Roth-Memoirs
See,
rules.
Hamling
States,
v. United
418 U.S.
Ed. 2d
(1974).
App.
Timmons,
S. Ct.
State v.
12 Wn.
(1974).
hand,
We believe that this film should be evaluated under impressed both the Miller and tests, arewe reasoning in United Palladino, found States v. (1st 1974) F.2d 499 Cir. and United States v. (5th 1973).
F.2d explained Cir. In Palladino the court that: caught period The defendants are in a of transition, their prosecutions having place taken before the Miller de- They fairly subjected penalties
cisions. cannot be violation rules established after their actions.
United States Palladino, at 500. And in Thevis it was concluded that: duty, [W]e do it believe to be our under the judiciary remands and in view of the care with which the protect rights,
must First Amendment to assure that no they one is convicted under earlier extant standards if pornography are more restrictive of than in Miller. those *4 required Thus make, when we as we are do, an “inde- pendent judgment constitutional on the facts case constitutionally protected”, as to whether the material is [Citations omitted.] we shall consider Miller both the obscenity. Any of and Memoirs definitions a on count based magazine not which is obscene under both of these standards due be dismissed.
United States v.
at 1155. In other words,
applied retroactively
should be
the
of
benefit
its
not be burdened
being
he should
defendant, but
review.2
for constitutional
solé standard
film in
“Refinements
question,
to the
now
Turning
that
the third element of the
believe
we do not
Love,”
constitutionally
satisfied;
has been
we
test
Roth-Memoirs
“utterly
that the movie is
say
cannot
unequivocally
value.”
ostensibly
of “Refinements
Love” was
The theme
It
society
towards
sex.
was de-
changing perspective
sexual attitudes.
demythologize
in part,
least
signed,
thesis. Liberal-
was
this
Documentary support
provided
was
so-
subject
being
on the
applauded
ized thinking
candor about
Openness
and
sex were
cially desirable.
that sex be viewed as a
suggested
It was
recommended.
the attitudes
our
generated
and
pleasant pastime
Victorian
be discarded.
heritage
puritanical
was devoid of
sex
explicit
half of the film
Approximately
recent decisions
consistent with
both
conclusion is
2Our
Supreme
Supreme
and the
of this
of the United States
Court
Court
state.
Hamling
States,
41 L.
418 U.S.
Ed. 2d
v. United
In
emphasized
(1974) the
that the Miller decision did
court
not
Ct. 2887
pre-Miller
utilized the Roth-Memoirs
un-
convictions which
test
make
constitutional,
Memoirs
abandoned
and that "the
formula was
not be-
“impossible
vagueness, but rather because of the
of its
burden.”
cause
remanded for reconsideration under the
Miller the conviction was
In
“correctly-
ruling,
Memoirs
the court noted that the
test was
but
new
regarded
limiting
prosecution
time
trial as
state
under con-
at the
trolling
15, 30,
law.” Miller v.
case
37 L. Ed. 2d
-
S. Ct.
Hamling found
the defendant
The court in
should be accorded
might
any
guidelines,
under the Miller
which he
receive
benefits
question
non
the material in
on to review
vel
went
companion
and Miller
the Roth-Memoirs
standards.
under both
Georgia,
Hamling,
Jenkins v.
41 L. Ed. 2d
U.S.
case
(1974),
found
the movie
the court
“Carnal Knowl-
S. Ct.
depict
edge” simply
way;
conduct
did
offensive
missing.
of Miller
there
no
Thus
reason for
element
second
independent
the film
to undertake
review
under the
the court
Roth-Memoirs standards.
Washington decision,
Distribs., Inc.,
State v. J-R
A recent
82 Wn.2d
during
involved
Interspersed throughout explicit were numerous sexual designed points being scenes illustrate made the nar- approximately rator and interviewees. These scenes were imagination duration to minutes in and the viewer’s Couples challenged portrayed the camera. were en- gaging cunnilingus intercourse, sexual well as in closeups organs. a fellatio. There were number of sexual Many young couples, of the scenes were of fond of one engaged activity. another, normal sexual Other scenes example, could not be so characterized. For a “doctor” was performing patient (with shown act on sexual a her prior consent) hypnotized. whom he had All of the scenes, Many one, save involved heterosexual twosomes. of these intellectually. scenes did little enhance the narrative successfully However, other scenes rather illustrated the preceding accompanying commentary. example, For one segment pointed poor relationship out that a be- spouses marriage. tween makes for a bad A visual illustra- provided showing tion was an inconsiderate husband hav- ing wholly regard wife, intercourse with his to her pleasure. marriage up, pointed would have broken out couple professional narrator, had not obtained counseling. suggested cigarette addition, the film may negative smoking have effect on one’s sexual activ- light oí Miller elaborating, and without reviewed Roth-Memoirs materials under standards as well. suffering ago- by partner ity, from the advice illustrated making love. addiction while nies nicotine psychiatrist producer, lengthy with the interviews lawyer part, for the included, no doubt least were *6 establishing purpose educational, the artistic, scientific, portions political movie, film. of the value of the These clearly standing protec- merit alone, would constitutional ex- combination of uncensurable material with tion. The plicit calculated to establish sexual scenes was doubtless the film’ssocial value. 584, 512 Distribs., Inc.,
In State v. J-R 82 Wn.2d in P.2d 1049 the court dealt with a situation which by accompanied obscene matter uncensorable material adopting Wisconsin, in Kois v. a test based on the decision (1972). 33 L. Ed. 2d S. Ct. Such by protected will be the First Amendment .material accompanying objectionable the Roth-Memoirs test if the movie, scenes are “relevant to the theme” of the have relationship [to] “reasonable and rational . . . the text publica- . . for the .” and the text is not “a mere vehicle tion” of the censurable matter. significant portions
We believe that of movie “Refine- satisfy ments in Love” test. We have reviewed above this the theme several scenes which we found be relevant accompa- rationally of the itself, movie related to the nying commentary. explicit depicted in Other sexual scenes only perhaps marginally this film were related.
we believe that in be re- doubt, cases of the issue should protection. solved in favor of Amendment cannot First We say any certainty constitutionally protected with portions publica- of this for the movie were a “mere vehicle unprotected segments. tion” Further, we otherwise believe film, whole, that this taken had some redeem- as a ing perhaps question half of value. There is no that appeal prurient sex, movie could to one’s interest portion and that of the movie characterized as could be representing explicit “patently in the manner of offensive” in United States v. But, as stated matters. sexual [protected] “[t]he inclusion of this matter finding, judg- precludes proportions significant our ‘utterly question is] [material without ment, ” App. Cox, See State v. 3 Wn. social value.’ P.2d issue in this case is a close view, the constitutional our portrayals. explicit of the due the dominance one, Standing prepared, alone are obscene. We are these scenes accept required,3 opinion expert, a of the but not physician film State, called has no medical so, value. scientific Even the ideas contained the non- jectionable portions although might per- film, ob we sonally disagree them, with are ideas or views which the protects. First Amendment literary standpoint, note,
We from artistic or the ex- pert called did State4 not conclude the film was “utterly literary or concluded, artistic value.” He *7 anything “I feel didn’t there was substantial the film of agree terms artistic work.” Even to were we with that opinion, prepared we are not to further conclude the that expressed “utterly” ideas film the are without value. The expert willing go State’s that far, not and neither are we. jury
We are mindful found otherwise in that this case. But bear in we mind the of admonishment the court Georgia, Jenkins v. 41 Ed. 2d Ct. 94 S. give juries the Miller decision did not “unbridled discretion” on Furthermore, issues. independent judicial review is the constitutional means for limiting supra. Georgia, Jenkins discretion. v.
We advance one other reason
for our decision. Miller
supra,
Supreme
the United States
Court dis-
changing
relating
the
cussed
need for
the
ob-
standards
scenity
stating that
the Roth-Memoirs test was “un-
3Expert
testimony
required
is not
establish
State’s case.
1973).
(5th
United States
“burden proof.” nal standards agree, conclusion, we it of that with which
In the context attorney giving proprietor or an a movie is conceivable that proprietor consider “Refinements advice to such a permissive constitutionally acceptable under Love” those circum- Under Roth-Memoirs. third standard consequences that criminal reluctant we are most stances guilt on “un- innocence turns so where should attach “utterly redeeming social a standard as workable” significant portion particularly where a This is so value.” pornography, but to hard core the film is devoted deserving of First Amendment and views rather to matters protection. in Love” fails decided “Refinements we have
Since satisfy for obscen- constitutional test to ity, the Roth-Memoirs guide- film
we need not evaluate the guaranty defendant that offer no lines. we constitutionally permissive of Miller will less standards protect decide the also need not him in the future. We assignments other error. defendant’s dismiss and remanded with instructions to Reversed information. J.,
Armstrong, concurs. compelled (dissenting) from am to dissent J. Petrie, —I indisputably majority. opinion I ob- viewed an *8 (Miller guidelines appraised film under scene Ct. 2607 419, L. Ed. 2d 93 S. 15, 413 37 U.S. guidelines (Memoirs (1973)) Mas- or under the Memoirs Ct. 975 L. Ed. 2d 86 S. sachusetts, 16 U.S. (1966)). running my in terms associates agree with
I do film contains material approximately one-half time constitutionally protected; the considered be which running clearly presentation one-half of the time is other “feast-your-eyes-on-this” type pornography, core of hard exposure genitalia color, maximum in detail to in with by titillating augmenting accompanied music the actors’ moaning, gyrations, trundling, groaning sighing. I have hesitancy asserting constitutionally protected no segments interspersed haphazardly film, somewhat throughout length, its constitute a mere facade to mask its purpose presentation pornographic core true hard —the example, viewer, “entertainment.” The is advised of the average sperm. food value contained in the male Presuma- bly, knowledge. this enhances the viewer’s scientific Then demonstrating nauseating several scenes follow detail may ingest how the viewer these nutritional elements into system. his “redeeming let
Now us turn to the social value” of this film. The film was intended be Hence, shown as unit. any, value, its social if must be measured of its terms separate any parts. having whole content —not its Far from redemptive worth, social I found the film as a whole to be despicably degrading worthy any import- and not ance. prescinding entirely my from view that
film is jury obscene under both Miller Memoirs, consistently the case at bench was instructed Memoirs with obscenity. jury formulation of The found Mr. Mushkin guilty charged. of the crime Our task on review is to ascer- simply jury constitutionally tain whether or not the could find film obscene under the test—if that test is applied; Hamling v. United States, Ed. U.S. (1974); 2d S. Ct. 2887 the Miller test —if applied; Georgia, that test is to be Jenkins v. 418 U.S. L. Ed. 2d 94 Ct. strictly or not we find test, therefore, is not whether jury view, our obscene, not, the film but whether just reasonably Obviously, also, can it. because the so find it indication that jury is not sufficient find it obscene does Georgia, supra. constitutionally Jenkins v. obscene. *9 not we find evidence is whether to be applied test of fact the constitutional establishes arguably so I would find. Clearly, guidelines. appropriate no Mr. Mushkin’s other I find merit Furthermore, I would affirm con- Accordingly, of error. assignments viction. November 1974.] Division Two. 1117-2.
[No. et al., al., Appellants, et Dick Sheldon Bert Strom Respondents.