251 N.E.2d 491 | Ohio Ct. App. | 1969
Defendant, appellant herein, is appealing his conviction in a trial before Judge Joseph Donofrio of the Youngstown Municipal Court for violation of Youngstown City Ordinance 132.09 (a) entitled "Indecent Literature," in which he was fined $200 and costs. Defendant challenges the constitutionality of this ordinance.
YOUNGSTOWN CITY ORDINANCE ON INDECENT LITERATURE.
Youngstown City Ordinance 132.09 (a) provides as follows:
"Whoever publishes, distributes, circulates, sells, lends, gives away, exhibits, or has in his possession or under his control with intent to publish, distribute, circulate, sell, lend, give away or exhibit any book, magazine, article, advertisement, print, or written or printed matter of any kind or form which, as a whole or in part, is obscene, indecent, lewd or lascivious, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars or imprisoned not more than thirty days, or both."
The affidavit in this case charged defendant with violation of city Ordinance 132.09 (a) in that he "did have in his possession or under his control with intent to distribute, sell or exhibit magazines which, as a whole or in part, is obscene, indecent or lascivious."
Prior to the trial, defendant timely filed a motion to dismiss the affidavit on the ground that Youngstown City Ordinance 132.09 (a) is unconstitutional. The trial judge overruled this motion prior to the trial of the case.
Both the United States Supreme Court and the Ohio Supreme Court have held that ordinances or statutes which prohibit the possession or sale of obscene materials without reference to guilty knowledge (scienter) or guilty purpose (mens rea) on the part of the accused are unconstitutional. Smith v.California,
Counsel for the city of Youngstown point out that there are many statutory crimes in Ohio in which knowledge or intent is a necessary element of the crime but the applicable statutes do not make any specific reference to knowledge or intent, such as Sections
We hold that when a criminal ordinance or statute does not clearly make guilty knowledge and guilty purpose elements of the offense, but judicial interpretation has made such knowledge and purpose necessary elements, an affidavit charging the offense solely in the language of the ordinance or statute is insufficient.
The Ohio Supreme Court had this issue before it on indictments filed under Section
We have had the issue of the omission of a material element of a crime in an affidavit before this court, and we held that such omission is fatal to the validity of such affidavit.State v. Goodman,
We hold that the affidavit in this case did not contain the material elements of guilty knowledge and guilty purpose, that the affidavit is insufficient, and that the trial judge committed error in overruling the motion to dismiss the affidavit.
Our decision on this point would ordinarily dispose of this case, but this case is one of several similar cases arising out of complaints by a member of the Youngstown City Council to the Youngstown Police Department. Counsel for both the defendant and the city of Youngstown have requested that we determine all the issues in this case to provide guide lines for future actions in this area. We recognize the legal problems created by the present controversy *273 and confusion in this area of law, and we feel that it is our duty to make a judicial determination of as many of the issues as we can under the present circumstances.
Neither "Venus" nor "Angel" has any written articles. They consist of photographs of nude or almost nude women. In practically all the pictures, the breasts and pubic area are fully exposed. In many of the pictures long stockings and garter belts are employed to frame the pubic area and to focus attention upon it. The models are posed in various positions, such as reclining, sitting or standing, but the general theme is seductive poses with the knees and legs of the models sufficiently widespread to reveal their genital areas in their entirety. In both magazines there are close-up front views of the exposed genital area of the models taken at an angle so as to focus on their sex organs.
The third magazine at issue is "Avant Nude" which according to its stated purpose is intended for nudists and those persons interested in the nudist scene. It's cover has a picture of a nude female, but the title of the magazine is superimposed on her genital area so that her sex organ is covered. It has written articles on nudism, and has pictures of both nude men and women, both separately and together.
In fulfillment of the stated purpose of this magazine, pictures are taken of what are claimed to be normal activities of nudists, and we feel that many pictures sufficiently qualify in this category so as to be beyond dispute. However, the first picture opposite the cover of "Avant Nude" as well as several other pictures in this magazine are, in our opinion, pornography, because they are posed pictures with the knees and legs of the models widespread so as to *274 fully expose the genital area of the models, and the pictures are close-up front views of the genital area of the models taken at an angle so as to focus on their sex organs.
Both "Venus" and "Avant Nude" have "For Adults Only" printed in relatively small print on their front covers, but "Angel" has no such warning anywhere.
These three magazines were obtained from Southway News, which is located at 2112 South Avenue, Youngstown, Ohio. It is described as a small convenience store which engages primarily in the sale of grocery items and the sale of beer and wine to carry out. It also sells books and magazines from racks in the store. The evidence indicates that the racks extended from the entrance of the store to the whole length of the remainder of the store to the right but does not establish the entire length of such racks or the location of such racks with reference to the other items sold in the store, such as groceries.
The evidence is that these magazines were found in a section of the magazine- or book- racks where this "particular type of literature" is located in this store. The evidence indicates also that the section of the magazine- or book- racks where this type of publication was located was not separated in any way from the rest of the store, and there was no sign placed over this particular section to the effect that the reading of such magazines was restricted to adults only.
Pornography is the portrayal of erotic behavior designed to cause sexual excitement. State v. Graves (Maine),
Dr. Shainess distinguishes between art and pornography as follows: True art conveys a thought, a speculation, or a perception about the human condition. Pornography is pictures of sex organs and their usage devoid of all other meaning — the personality having no place. They bear in upon one a sense of increasing ugliness and degradation of the human being. Pornography is not art, no matter how pretty the colors.
In the instant case, the police officers entered the store during business hours the same as any other member of the general public; identified themselves to the defendant who was in charge of the store; selected only one copy of each publication alleged to be obscene; did not arrest defendant, but informed him that they were going to bring the magazines to their office for review and that if a decision was made to prosecute the magazines would be used as evidence; and offered to pay for the three magazines. Defendant voluntarily permitted the police officers to take the magazines without paying for them. We hold that this was neither an unlawful search nor an unlawful seizure by the police officers. Defendant had the option to demand payment for these magazines from the police officers on the same basis as any other member of the public and was free to sell other copies of these magazines if he wished to assume the risk to do so. The existence of the obscenity laws of the state of Ohio and the city of Youngstown would induce some tendency to self-censorship on the part of defendant. We hold that the fact that the police officers' actions in this case may increase this tendency to self-censorship *276 on the part of defendant does not constitute unlawful prior restraint.
Marcus v. Search Warrant,
Lee Art Theatre v. Virginia,
A statute prohibiting obscene, lewd and lascivious publications has been part of Ohio law since 1872 (69 Ohio Laws 174), and is now Section
Since 1902, all municipal corporations in Ohio have statutory authority to prohibit the distribution, sale and exposure for sale of obscene or immoral books, papers, pictures and periodicals or advertising matters. Section
However, there is no statutory definition in Ohio of either of the words "obscene," "indecent" or "lascivious." Under Section
We feel that the words "indecent, lewd or lascivious" have no significant meaning beyond the meaning of "obscene" for the purpose of this case; therefore, we will drop any further discussion of these words and discuss the word "obscene."
Practically all the cases on this subject, that have come to our attention, concern the use of the word "obscene" as a legislative standard without any meaningful definition of such word.
In Roth v. United States,
In Memoirs v. Massachusetts,
"Under the test in Roth v. United States,
Section
In New American Library of World Literature, Inc., *278 v. Allen, 67 Ohio Law. Abs. 143, an earlier Youngstown City Ordinance that used that standard of "obscene" and "immoral" was held not to be unconstitutionally vague.
Therefore, under the present state of the law, we hold that Youngstown City Ordinance 132.09 (a) and Section
In arriving at this conclusion we have restricted the meaning of obscene to offensive to the moral standards of the people as a whole. After a review of the law on this subject, we have concluded that, in order for a statute or ordinance prohibiting obscene publications to be constitutionally valid, the moral standards of the people as a whole constitute the only test allowable.
Judge Struble of the Hamilton County Common Pleas Court enunciated this test in State v. Lerner, 51 Ohio Law. Abs. 321, at page 332.
We agree with his reasoning that Ohio's "obscene" statute was enacted for the preservation of the morals of the people of this state, and that the moral standards or moral concepts of the people, as to what is obscene literature, is the only test allowable.
In our opinion, the question of who determines the applicable standard in obscenity cases, whether it is the moral standards of any particular community or any other standard, is extremely important, because the determination of this question also, in effect, determines what acts of publication on sexual matters constitute a crime and what do not. We feel that this is a legislative rather than a judicial function.
The power to determine which acts shall constitute crimes, and which acts shall not, belongs exclusively to the legislative branch of government and is not shared by the *279
courts. State v. Healy,
We hold that the determination of community standards relating to the description or representation of sexual matters is a legislative rather than a judicial function.
The moral standards of the people in Ohio on sex are readily ascertainable because of the statutes that have been enacted on the subject. Youngstown has similar ordinances to the statutes of the state of Ohio.
1. Adultery or fornication. Section
2. Prostitution. Sections
3. Any person eighteen years of age or over willfully making an indecent exposure of his person in a public place or in a place where there are other persons to be offended or annoyed thereby, or solicit another to engage in an act of sex perversion. Section
4. Any person eighteen years of age or over willfully exposing his or her private parts in the presence of two or more persons of the opposite sex. "Private Parts" means the external genitalia of the human body. Section
5. Sodomy. Section
We hold that one of the purposes of Section
We further hold that photographs of male or female human bodies exposing their external genitalia in a manner designed to cause sexual stimulation or excitement are contrary to the moral standards of the people of Ohio.
In our opinion, there is a reasonable relationship between such photographs and the public policy of Ohio, which prohibits obscene publications that are likely to incite or encourage extra-marital sexual relations contrary to the moral standards of the people of Ohio. We understand that magazines of this nature are being found in school lockers of boys attending high schools. We feel that when it is a matter of incurring expense to purchase such publications, these photographs would generally have more appeal to unmarried males or to married men in unstable marriages.
Our conclusion is that pictorial pornography as we have defined it in this opinion is included among the obscene publications prohibited by Section
We hold that the cover pictures of both "Angel" and "Venus" and the photographs in all three magazines, which are close-up front views of the fully exposed genital area of the models and in which the focus is on the sex organ of the models, are pornography, are offensive to the moral standards of the people of Ohio and of Youngstown, and are obscene publications within the meaning of both Youngstown City Ordinance 132.09 (a) and Section
Sex is part of the creation of human beings and enables a wonderful and beautiful relationship when a man and woman unite in marriage. Sex is not per se obscene, but the use of the human body for sexual behavior not intended in the creation of human beings can make such behavior obscene.
In the creation of human beings, the male is more aroused by the sight of the female sex organ than the female is by the sight of the male sex organ. Thus, most pornographic publications are designed to appeal to males, because of this difference in sexual interests between males and females.
In the creation of a female, the location of the sex organ is such that it is not fully revealed unless she spreads her legs. Because of this a nude woman does not normally completely expose her sex organ in usual activities. Thus, the complete exposure of the sex organ of a nude woman is usually the result of her deliberate decision to do so.
The great majority of women in civilized societies observe a sense of decency and cover their sex organs. However, a small minority of women in civilized societies defy this generally accepted standard of human sexual behavior and degrade themselves by publicly exhibiting their sex organs by assuming poses that are unusual or unnatural for any other purpose except to expose their sex organs. The sexual behavior portrayed in such pictorial pornography is not the usual behavior of a married woman in the presence of her husband in their private bedroom.
We hold that photographs of nude females posed in unusual and unnatural positions for the purpose of exposing their genital area, and focusing the camera on their sex organs, degrades the purpose of God's creation and is such an abuse of His handiwork as to make such behavior obscene. Such photographs are designed to cause sexual stimulation or excitement. It is a morbid appeal *282 to a male's prurient interest in sex and is offensive to the moral standards of the people of Ohio. Such photographs make sex ugly and degrade and insult human nudity.
State v. Jacobellis,
The Ohio Supreme Court in State v. Jacobellis, supra,
followed the test prescribed by the United States Supreme Court in the Roth case, and in State v. Mazes, supra, followed the test prescribed by the United States Supreme Court in theMemoirs case.
Jacobellis v. Ohio, supra, was a six-to-three decision with only three judges concurring in the main opinion, which held in effect that the fact of whether a particular publication is obscene is a matter of judicial determination (
In State v. J. L. Marshall News Co.,
Mr. Justice Harlan, in his dissenting opinion inInterstate Circuit, Inc., v. Dallas,
Mr. Justice Harlan believes that no improvement in this chaotic state of affairs is likely to come until it is recognized that this whole problem is primarily one of state concern, and that the Constitution tolerates much wider authority and discretion in the states to control the dissemination of obscene materials than it does in the federal government.
We feel that Mr. Justice Harlan has succinctly stated our problem in deciding this case. It is to be noted that Mr. Justice Harlan makes a distinction between cases concerning federal laws and those concerning state laws.
Mr. Justice Stewart of the United States Supreme Court, in dissenting opinions, has stated that hard core pornography is the only class of material that government may constitutionally suppress; whether by criminal or civil sanctions. He set out the following description of the kind of materials which he considered hard core pornography in Ginzburg v. United States,
"* * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. * * *"
In our opinion, the three magazines at issue in this case are not hard core pornography within the meaning of the above definition of Mr. Justice Stewart.
However, we are inclined to feel that the standard of the United States Supreme Court is something that falls short of hard core pornography as used by Mr. Justice Harlan in his dissenting opinion in Interstate Circuit, Inc., supra. SeeMishkin v. New York,
We feel that the standard "something that falls short of hard core pornography" is almost as imprecise as the use of the word "obscene." Until the United States Supreme Court gives a definition of this expression, a court, such as this one, is not in a position to apply it.
IS PICTORIAL PORNOGRAPHY CONSTITUTIONALLY PROTECTED?
The publishers of pornography, in support of their position that it is constitutionally impermissible for governmental regulation of the pornographic magazines which are at issue, cite cases of the United States Supreme Court as authority to support their position. Unquestionably, some minority members of the United States Supreme Court are squarely on the side of the publishers of pornography on their right to publicly sell and exhibit pornography to adults regardless of whether this is offensive to the sex morals of the great majority of the community. However, we are only bound by the decisions of the majority of the court.
The main case upon which defendant relies is Central MagazineSales, Ltd., v. United States,
Defendant's conduct in his blatant display of pictorial pornography in his store indicates that he believes the contention of the publishers of pornography, that this material is constitutionally protected from governmental regulation. *286
The front covers of two of the magazines at issue are blatant pictorial pornography, that were openly displayed on a magazine rack in his small grocery store, with no provision to isolate them from any member of the public, who happens to enter the store to purchase such items as groceries, nonobscene magazines, newspapers, etc., and with no warning as to the fact that this pornography is present in the store. As we have already held, the covers of these magazines are offensive to the moral standards of the people of Ohio and would be offensive to a substantial percentage of the general public. Under the facts of this case, patrons of this store for purposes other than the purchase of this pornography are confronted with it without any warning and regardless of whether it is offensive to them.
If we should sustain defendant's contention that pictorial pornography is constitutionally protected from governmental regulation, one of the results of such decision would be to give defendant the right to place a large poster in the window of his store advertising the sale of such magazines as "Venus" and "Angel" with a blown-up picture of their pornographic covers. His store is located on a main, well-travelled street in Youngstown; and if this were done, such a poster would be seen by many persons of all ages. We recognize that this is not the issue in the instant case, but, in our opinion, the difference between the exposure of such a pornographic poster to the general public and the exposure of the magazines with pornographic front covers on a magazine rack, in a small grocery store, located in a narrow aisle opposite grocery shelves, with no provision to isolate such material or to warn about its presence, is a matter of degree rather than substance. In both cases, the pictorial pornography is being intruded upon unwilling persons.
The facts of this case should be distinguished from situations where pictures alleged to be obscene are being displayed to persons willing to view them, such as erotic motion pictures shown at "Art" theatres for adults only. Those who are offended by such motion pictures are on *287 notice of what to expect and have the choice to remain away from such pictures. In the instant case there is no notice to anybody of the existence of this pictorial pornography so that patrons unwilling to see this pornography will have the opportunity to avoid seeing it.
In the recent case of Stanley v. Georgia,
The United States Supreme Court has made it clear that pictorial pornography is not constitutionally protected from governmental regulation when juveniles are concerned. InGinsberg v. New York,
In the instant case, defendant was not charged with exhibiting this pornography to minors, and there was no evidence that juveniles were exposed to it. Therefore, this cannot be considered on the issue of the possible guilt of *288 the defendant of a crime under the facts of this case. However, on the issue of whether pictorial pornography is constitutionally protected, we have to consider that the facts in this case indicate that this is the type of store that juveniles would have occasion to patronize. If this is so, this would be sufficient reason in itself to overrule defendant's contention that the magazines at issue are constitutionally protected. The right of parents to send their minor children to a grocery store for such items as bread or milk without having their children exposed to pictorial obscenity is of such public concern as to justify the protection of such right by governmental regulation of pictorial obscenity.
The United States Supreme Court has also recognized the right of individuals who are offended by pictorial obscenity to be protected from having such obscenity intruded upon them without their consent. Stanley v. Georgia,
The constitutional rights of each individual are subject to reasonable limitations in relation to the rights of others.Public Utilities Commission v. Pollak,
In Breard v. Alexandria,
"The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life."
We distinguish the Central Magazine Sales case from the instant case by the fact that the Central Magazine Sales case concerned enforcing a federal law which would have the effect of prohibiting the pornographic magazines for all purposes. The United States Supreme Court has held in the Stanley case that it is unconstitutional to make mere private possession of obscene material a crime; therefore, federal laws prohibiting the importing of obscene publications can not be used to prohibit magazines that can constitutionally be possessed for private use. *289
We understand that all fifty states have laws regulating obscene publications, but among the states having such laws there is a difference in the interpretation of what acts of publications are obscene.
The decisions of the United States Supreme Court indicate that their standards for obscenity are variable rather than inflexible, and the application of such standards will vary according to the nature of the materials and the use or purpose of obscene publications. Ginzburg v. United States,
The Supreme Court of Missouri held that similar pictorial pornography was not constitutionally protected and was obscene in State v. Vollmar,
We conclude that the sale of pictorial pornography, under the facts of this case, is not constitutionally protected and is, therefore, subject to governmental regulation.
We are unaware of any cases coming before the United States Supreme Court concerning pictorial pornography for adults in which the Legislature sufficiently described the pictorial pornography so that it was unnecessary for the judicial determination of what type of photographs or pictures concerning sex were being prohibited for adults.
Mr. Justice Clark in the majority opinion in Times FilmCorp. v. Chicago,
We feel that in contrast to written material, legislation can be drafted dealing with pictures so that it would be unnecessary for a judicial determination of what is prohibited. We are not advocating the enactment of such legislation, because we do not think that is a proper function of this court. However, on the issue of whether the legislative bodies of the city of Youngstown and the state of Ohio can constitutionally regulate pictorial pornography, we wish to point out that as far as we know the issue of the right of the Legislature as a matter of public policy to prohibit the commercial sale of pictorial pornography described in such specific language that it is unnecessary for a judicial determination as to what is prohibited has not come before the United States Supreme Court.
The right of a Legislature to prohibit pornography as a matter of public policy has been recognized by such eminent authorities as William B. Lockhart and Robert C. McClure, 38 Minnesota Law Review 295, at 388.
Pictorial pornography is more a representation of sexual conduct than an expression of an idea on such conduct. It has been recognized that the visual impact of a photograph is greater than written or spoken words, and that pictures of sexual scenes can not be shown with as much frankness as they may be described in books. Lockhart and McClure, Censorship of Obscenity, 45 Minnesota Law Review 5, at pages 94, 101-102.
For whatever it is worth, the members of this court believe that, as a matter of public policy, the state of Ohio or the city of Youngstown should have the authority to regulate the type of pornographic publications that are now flooding the city of Youngstown. In taking this position, we are aware that some minority members of the United States Supreme Court disagree with such right of the legislative bodies.
We recognize that the issue of sex morals is controversial, *291 but so are the issues of gambling, drinking intoxicating liquor or even smoking marijuana, but no court has disputed the right of a state or community to prohibit these matters when they are offensive to the community morals or standards.
It has been generally recognized that the right of an individual to publicly engage in activity that would otherwise be permitted, but is prohibited by law because it is offensive to the community morals, must yield to rights of the majority to prohibit what is offensive to reasonable community moral standards. It is true that the First Amendment is argued in obscenity cases, but it is also true that the United States Supreme Court has held that obscenity is not within the area of constitutionally protected freedom of speech or press.
On the reasonableness of legislation regulating pornography, Mr. Justice Clark, in his dissenting opinion in Memoirs v.Massachusetts,
In addition, there is persuasive evidence from criminologists and police officials. J. Edgar Hoover, Director of the Federal Bureau of Investigation, has repeatedly emphasized that pornography is associated with an overwhelmingly large number of sex crimes. Hoover, Combating Merchants of Filth: The Role of the FBI, 25 U. Pitt. L. Rev. 469 (1964); 27 Cincinnati Law Review 61, at 75.
The clergy are also outspoken in their belief that pornography encourages violence, degeneracy and sexual misconduct. *292 After years of service with the West London Mission, Rev. Donald Soper found that pornography was a primary cause of prostitution. Rolph, Does Pornography Matter? (1961) 47-48. For a general discussion see Murphy, Censorship: Government and Obscenity (1963) 131-151.
In drafting legislation in this area, material dealing with sex in a manner that has medical, scientific, educational or artistic value should be excluded from regulation.
Judgment reversed.
O'NEILL and JOHNSON, JJ., concur.