*1 Commonwealth v. Trainor. used as a retail establishment liquor nothwithstanding outcome instant case. Such evidence reinforces only that, conclusion with owners judge’s respect the lessors of the Plaza Store Package abate- premises, ment had orders to be broad order to ensure that his in- the maintenance junction against of a nuisance liquor would not circumvented.
Judgment affirmed. vs. Neil Trainor (and companion cases1).
Suffolk. November 1977. April Hennessey, Present: C & Kaplan, J., Braucher, Wilkins, Liacos, Quirico, Abrams, JJ. standard, Law, Community Obscenity, Expert testimony. Due Process of Law, Obscenity. Constitutional speech Freedom of and of press, Evidence, Obscenity. opinion survey. Public 272, 31, The statutory definition of obscene matter in G. L. c. is not un- § constitutionally vague. J., with whom J., [798-799] Kaplan, Liacos, joined, and whom J., J., with joined, dissenting Abrams, Liacos, statute, 28C-31, that the ground G. L. c. violates §§ art. 16 of Massachusetts Declaration of Rights.
Expert testimony part required prosecution’s case at the trial of indictments under G. L. c. 29.§ [799-800] knowledge Proof of G. necessary for conviction under L. c. § require a does not that the defendant showing knowledge legal had obscenity. [800-801] 272, 29,
At the trial of indictments under G. L. c. there was no error excluding opinion evidence where the offer of public survey proof failed to representativeness persons demonstrate the inter- viewed and failed to show that the were relevant results in the case. issue [801-806] Distributors, Inc., appellant doing is Beacon business as other New News. England v. Trainor. *2 in the Court returned found and Superior Indictments 12, 1975. on June were heard by Dwyer, J.
The cases for a direct The Court request granted Supreme Judicial review. appellate H. for
William I. Cowin with him) Rappoport (Ronald the defendants. O’Neill, for P. the Assistant District Attorney,
Timothy Commonwealth. and the
Wilkins,
The individual defendant
corporate
J.
a
1976,
in
after
February,
defendant were found
jury
guilty
trial, on all
of indictments
them
waived
counts
charging
1975,
matter
in
of obscene
June,
with
possession
having
it.
these
were
with intent to disseminate While
appeals
pro
court,2
three
the
to this
we decided
cases
gressing
involving
in
statute which was enacted
1974
June,
obscenity
(see
Com
1974,
this
St.
c.
after
court’s
430),
holding
Horton,
monwealth v.
that
our
(1974),
Com
statute
unconstitutional.
previous
monwealth 707 Main
Com
Mass.
Corp.,
(1976);
Thureson,
monwealth District At
have to the were apply by Although “books.” The statute does not its terms films. Liacos, in Commonwealth contrary suggested (see J., concurring has been Inc., Book, a [1977]), showing the absence of v. Zone previous proceeding jurisdictional of the commencement civil is not defendant, It but need not by defect. is a matter which raised Ferro, be considered otherwise. Commonwealth
1. In Commonwealth v. 707 Main supra 383-384, we held that G. L. 28C-31, c. were not §§ under either the unconstitutionally vague Constitution of the United States or the Constitution of the Common wealth. The that the material which appellants grant they for sale possessed sexual conduct as defined in portrayed L. G. c. and concede that definition of sexual § conduct is not however, vague. They argue, definition of obscene matter is statutory unconstitutionally because of that vague 272, 31, G. L. c. language ap § in St. c. 12, which pearing requires *3 matter, whole, as must taken a “to interest appeal prurient of the the average person, applying standards contemporary the commonwealth” and must or describe “sexual depict conduct in a offensive . . . .” In Com patently way monwealth v. 707 Main we at noted that supra definition themet statutory a requirements expressed by Court of the United majority States Miller Supreme 413 U.S. 24-27 We concluded California, that, in the case, the trier of fact must use an typical average citizen of Massachusetts as standard for determining matter whether particular interest appeals prurient and whether the matter person average determining describes sexual conduct a depicts offensive patently Mass, at 384. way.
The standard appellants argue statutory is and difficult to person hypothetical average vague apply. contend, record, without They that there proof any no is Statewide standard concerning obscenity argue that, standard, even if there were such a distributor of sex- oriented material at ually must that standard his identify The Court of United States has conclud- peril. Supreme ed that our language substantially statutory equivalent definition “obscene” is not unconstitutionally vague. Illinois, Ward U.S. 771-773 Smith v. States, United 308-309 cases (1977), cited. before us is whether the Constitu- only question tion of the Commonwealth should construed to require 374Mass. 796
Commonwealth v. Trainer. such claim in Com We rejected greater specificity. 707 Main no reason to monwealth and see Corp., supra, If material that conclusion at this time. displays change defined “sexual conduct” as by person precisely within that the material also fall warned may adequately numer elements of There are the other statutory obscenity. fails in the law conduct which ous situations criminal where trier to meet the of reasonableness is criminal. The standard the defendant’s con of fact in such an instance must assess terms in which a reasonable duct way person The use of a of reasonableness should have acted. standard held under our has never been unconstitutionally vague Constitution, and the standard in this case has not statutory been shown to be different in its significantly concept States, See Smith v. United a measure of reasonableness. States, United 308; supra Hamling that the standard is Granting incapable articulation, we do not consider the definition of precise “obscene” to the unconstitutionally vague applied appel lants.
2. The next tous reconsider our appellants urge holdings that, without the introduction of evidence on Com- expert norms, monwealth the material itself be sufficient *4 District At- evidence for trier of fact to find obscenity. the N. Dist. v. Three Theatres torney Way Corp., for Thureson, Commonwealth 391, 393-394 (1976). Commonwealth v. 707 Main (1976). 384-385 Jenkins v. United Georgia, 418 U.S. (1974); Hamling States, 418 U.S. Kaplan California, (1974); Slaton, Adult I Paris Theatre U.S. see no reason to our view on We change the subject. concede weight authority appellants sup- the conclusion that is not as
ports expert testimony required in the case.4 part prosecution’s proof typical obscenity testimony may necessary where the recognize expert ap We Slaton, is to a deviant See Paris Adult Theatre I v. peal group. 49, 56 n.6 (1973). course,
Of absent favorable expert Com- testimony, monwealth risks that the trier of fact will be unable to ar- rive at a conclusion Statewide standards. A concerning defendant is entitled to that, or instructions if the rulings trier of fact cannot determine norms, defendant is entitled to favor, in his and that the finding trier of fact must views, but the views apply, personal in the Commonwealth average person as a whole. Al- the defendant offer his though own evidence concern- Statewide standards v. 707 Main (Commonwealth ing Corp., supra at the burden of 384), a violation of proving those standards a reasonable doubt beyond remains on the Commonwealth.
We leave to another occasion, if it should arise, ever reso- lution of to the statute that there challenge by proof no such interest of the thing (1) “prurient average per- son,” sexual conduct which is (2) offensive with patently reference to norms, contemporary or (3) standards of the “contemporary commonwealth.” The ap- have not met their pellants burden of heavy demonstrating of the Commonwealth’s unconstitutionality obscenity statutes. We are not that there is no rational persuaded basis to conclude that there Legislature are ascertainable standards, Statewide even the citizens of the Com- though monwealth differ from each other in numerous in- ways, residence, education, cluding upbringing, place age, and sex. The existence of Statewide religion, standards lies at the heart of the Commonwealth’s statute because such universal standards must exist if a selected jury one course, is to them. Of if only county apply exist, standards do not the statute must fail for unconstitu- tional vagueness. views,
3. We see no occasion to our change expressed Commonwealth v. 707 Main Corp., supra *5 concern the nature of the of a defendant’s ing proof nec knowledge a conviction under G. c. essary L. 29. Section 29 § that the defendant matter which requires proof possessed obscene, it to be obscene.” Section 31 of “knowing Trainor.
Commonwealth v. defines St. c. c. as in G. L. appearing of the character of as “a awareness “knowing” general v. 707 Main Commonwealth In in our matter.” opinion of legal 383, we said that supra “knowledge com- and noted that the statute not required,” obscenity that a defend- with constitutional requirement “the ported matter’s contents and ant have general knowledge . . . be a criminal conviction character before States, Id., United obtained.” citing Hamling Thureson, 87, 123 we discern In this adhering position, to due under no violation of a defendant’s process right Declaration of Rights. has
4. which this court We come an issue with finally not dealt the judge previously. appellants argue excluded evidence. public opinion survey improperly ad- seen, be are will opinion surveys Although, public circumstances, in we with missible certain the judge’s agree decision to exclude the public survey. appellants’ opinion
A conducted offered survey, properly opinion public in such is admissible surveys, through expert conducting in an case if it tends to show relevant standards be the Commonwealth. We see no distinction meaningful tween conducted offered properly piiblic opinion survey of an to show norms and community testimony expert who states his views on the concerning public opinion have certain obscene conduct. We portrayal allegedly already recognized admissibility testimony expert I Adult Theatre said, Paris the latter We have type. citing Slaton, fact con triers of “may (1973), stand sider on the of Statewide expert testimony subject evidence, ards, if is offered but also may disregard be se suf evidence matter at issue may because the per cases.” for a most ficient evidence prurience finding 374, 384-385 v. 707 Main Corp., excluded, in the testimony may (1976). Although expert knowl discretion, if a is within the common subject judge’s line between matters of com- average juror, edge *6 802 374 796 Mass. v.
Commonwealth Trainor. mon and matters knowledge common beyond knowledge If often is not precise. expert testimony may give assistance in a fact it jury appreciable resolving is question, admissible discretion. v. judge’s Fournier, 372 350 Commonwealth v. Mass. (1977). Boyd, 182 Where the is question whether of sexual conduct are “obscene” portrayals under definition, it would be a case in statutory rare which from a should be excluded testimony expert on qualified it would not ground the trier of fact. helpful conducted Similarly, properly public survey opinion should be admitted. The then is what is a question properly conducted public opinion survey.
If relevant, the universe is if the surveyed sample ques tioned universe, is if representative relevant the ques tions are in a form to obtain unbiased answers appropriate error, within a reasonable if is margin pollster qualified, admission weight authority supports public a fact relevant to a opinion survey tending prove case, issue. See the oft-cited Zippo Mfg. leading, Inc., Co. v. Rogers 216 Imports, F. 682 et Supp. seq. Sales, Studebaker Inc. v. See also Randy’s 1963). (S.D.N.Y. U.S.A., Nissan Motor 533 F.2d 520 Corp. Cir. (10th Grotrian, Schulz, Th. Helfferich, SteinwegNachf. 1976); & Sons, Presi 523 F.2d 1341 Steinway Cir. (2d 1975); dent College College-N.H., 508 Colby Colby F.2d Inns, Inc. Out 809 Cir. 1975); Holiday Holiday (1st America, Inc. 481 F.2d 447 1973); Sample, Cir. (5th Porrath, 118, 123 41 2d Div. aff’d on this App. (1973), opin ion, 33 6 N.Y.2d 961 Evidence 1704 (1974); Wigmore, § J. Card, n.l Evidence, rev. S. (Chadbourn 1976); Jones 10:8, Civil and Criminal at 278-279 ed. 1972); (6th Annot., 76 Liti A.L.R.2d Manual for (1961); Complex Pub. Co. ad 1977), gation, (West discussing Zeisel, of the results of The missibility polls; Uniqueness Evidence, Cornell Sorensen Survey L.Q. Sorensen, and Use of Research Admissibility Opinion Evidence, However, N.Y.U.L. Rev. where v. Trainor. deficient, the trial judge the methodology v. Commercial *7 Utah See, Bank it. e.g., should exclude cert, 19, Cir. Bank, 1966), F.2d (10th Security sample denied, (unrepresentative (1967) 3d 325-326 Thomas, Ill. App. People used); in obscenity case); foundation for survey (inadequate (1976) Ltd., 4 C.C.C.2d Cinema v. Times Square Regina universe). Ct. of 1971) (improper App. (Ont. whether a to resolve inclined to long are not pause
We
is,
it
and, if it whether
is hearsay
opinions
survey
people’s
hear
to the
of mind
under the state
exception
is admissible
have admitted
authorities
particular
rule. Numerous
say
Co. v.
under
Zippo Mfg.
that hearsay exception.
surveys
683;
Inns, Inc. v.
Inc.,
at
Holiday
supra
Rogers Imports,
447;
America,
Morelli v. Board
Out in
at
supra
Holiday
303, 42 Ill.
School Dist. No.
Educ., Pekin
High
Community
Evidence,
Card,
2 S.
3d
App.
Jones
278-279;
10:8 at
Regina
Civil and Criminal supra, §
Ltd.,
Prairie Schooner News
C.C.C.2d
(Man.
The focus should be on
techniques
Ct. of
1970).5
App.
is involved. See
rather than on whether hearsay
employed
Committee, 56
Evid. 703 and Note of
Advisory
Fed. R.
conducted
183, 283
A
public opin
F.R.D.
properly
of trust
ensures a
measure
ion
itself
good
survey
adequately
sense
worthiness,
its admission
necessary
and
as the
would be as
survey
that no other evidence
good
matter.
obtainable as a
even
practical
evidence
perhaps
Inc.,
supra
Co. v. Rogers Imports,
See Zippo Mfg.
Works,
v. United States
683-684;
Inc.
American Luggage
course,
Of
Co., 158 F.
admission.6 In certain weaknesses manner which was conducted affect poll might only to be accorded the results rather than the ad- weight survey of the in evidence. missibility In of these consider light we principles, public opin- ion for the defendants in this survey prepared case. The defendants made offer an ex- proof testimony hibits to their Two adults, hundred relating all survey. Boston, sex, residents of divided were obtained evenly by Boston all sections of solicitations con- by telephone ducted each was interviewed. Each was evenings, of- fered to come office in downtown Boston $10 for an *8 interview on an undisclosed to a subject pending relating court case. Trained conducted personnel the interviews before trial. The to defendants intended introduce shortly the of results the in survey expert experienced through who would have testi- conducting public opinion surveys, fied of error in the from 6 % margin ranged to 10%. views of questions largely each sought personal whether, circumstances, interviewed:
person
particular
he or she would be
to have motion
films
picture
willing
or
shown
sold
human sexual conduct.
magazines
depicting
asked,
One
whether
the individual
question
example,
would
be
to have motion
films or
“personally
willing
picture
human sexual
intercourse between
magazines
showing
of the
members
sex
shown or sold” in
opposite
(sic)
(a)
Boston,
residential
commer-
neighborhoods
(b) general
in Boston,
cial or business areas
Boston
entertain-
adult
(c)
districts,
ment
under conditions where minors were ex-
(d)
cluded, or
marked so that
not
anyone
(e)
places clearly
to see them could avoid them. The interviewer
wanting
sug-
Co.,
6In Commonwealth v.
Fin.
215 (1971),
Beneficial
cert,
Massachusetts,
sub
and sub
denied
nom. Farrell
Massachusetts,
(1972),
nom.
Fin. Co.
As be subjects would expected, willingness sold, shown, to have such films or interviewed magazines sale as the showing increased suggested place areas, to when moved from residential adult entertainment involvement, minors were excluded from and when to in- nature the material be shown or sold was plainly dicated. In males more were allow general, willing or sale of such materials than females. showing It of- note certain facts not set forth in the important fer no There was indication the method proof. selection interviewed assured subjects of the citizens of Boston. One sample representative might that certain would decline to suspect persons participate *9 or because of the method which were by they approached to because of their or to take the time unwillingness inability in such interviews. The selection was not participate process to be free from a bias in the results. survey shown producing the The of residents of Boston raises only interrogation results whether the are to survey prove question competent However, the the Commonwealth as whole. standards statute the of a because assumes existence uniform, standard, we should not Statewide a repre- reject valid limited to a sentative and otherwise survey population as of Boston. large note most we the absence Finally, significantly, that the the lack of indication willingness, willingness, any to the sale of or the indifference sexually explicit group 806 374 796 Mass. or the magazines films has showing sexually explicit any relevance to issue any material this case. The survey results were offered as on the apparently bearing question whether the films and involved case magazines in this sexual conduct in a displayed offensive patently way. offer of made no proof of, to connect an attempt acceptance to, an indifference or sale of showing that material with whether the sexual conduct involved in this particular case was or described in a depicted offensive patently way. would not Perhaps many people object others’ seeing material, themselves that material as although they regard offensive. The offer of did not patently proof explain of the offered evidence to this fundamental relationship factual question offensiveness. patent
Because the offer of failed to demonstrate proof representativeness of interviewed and failed to persons show that the were results relevant survey case, issue in the warranted judge excluding it. expert testimony concerning
Judgments affirmed. whom Liacos, As (with J., joins, dissenting). J. Kaplan, I offered, have belief opportunity my expressed statute is unconstitutional under our Declaration of Rights.1 On the same of fundamental I vote ground invalidity today to reverse the of conviction. judgments Horton, (1974) (concurring); 365 Mass. Inc., v. Capri Enterprises, 181 (1974) Boston, (concurring); Corp. Essex Comm’r Theatre Police Aucella, (1974) (concurring); Revere v. Mass. Invs., appeal Charger sub (1975) (dissenting part), dismissed nom. Inc. Corbett, U.S. 877 Commonwealth v. 707 Main Thureson, (1976) Mass. (dissenting); Commonwealth v. 391 (1976) Attorney District Dist. v. (concurring); N. *10 391, Way Three Theatres 371 Mass. 395 (1976) (dissenting); Com Book, Inc., 366, monwealth v. Zone (1977) (concurring); Ferro, 379, (1977) Commonwealth 372 Mass. 386-387 (dissenting); Sees, 532, 538 (1978) (concurring). ante to be un- the law court balk at A of the holding majority ato face, but are they open on its they say constitutional Statewide “stand- that there are no cognizable demonstration void for hold the law to be ards,” in would which case they it would we with As are censorship, vagueness. dealing demand for a demonstration can that, fairly seem if any to made, sense, it the and addressed be in contrary should Because Commonwealth, not the transgressor. putative matter, and the inevitable of the of difficulty subject a have to be asked on that would questions opacity the burden is not of unimportant. survey, placing poll fore- it would be by Nevertheless premature discourage with em- casts of failure any attempts satisfy majority have Indeed, so wearisome and data. purposeless pirical here, seen that all been the under the law as prosecutions and out of reason to the statute rest might hope put the way. Liacos, I whom Abrams, (with J., joins, dissenting). J. statute, 28C-31, our G. L. c.
agree §§ meets set forth Miller v. requirements California, U.S. 24-27 707 Main Corp., (1973). Illinois, 371 Mass. 381-386 See Ward v. (1976). States, Smith United In the we have stated that fact 308-309 (1977). past on the Federal Constitution that we rested decision wholly the United Court should as construed States by Supreme rise inference “that the Declaration of Rights to any give the Constitution of this Commonwealth less capable the essentials of freedom of press, speech, protecting than is the Federal Constitution. arts. assembly 16 and 19.” Commonwealth v. Gilfedder, decision rests on decisions of When a controlling States, “we forbear aca Court of United Supreme our own demic of the Declaration Rights discussion Films, Inc. v. Pub. Brattle Commissioner Constitution.” have de we Recently Safety, art. termined that some circumstances protects expres- *11 808 v. Trainer.
sion which not be might entitled to as a matter of protection Federal constitutional Sees, law. Commonwealth v. ante 532, 536-537 (1978).
While a court this have held that under majority art. 16 our constitutional, statute is obscenity Commonwealth v. 707 381,1 Main at would Corp., supra hold under art. 16 speech reasonable restrictions subject pro- viewers,1 audiences,2 tecting unwilling minors,3 and captive possibly Book, Commonwealth v. Zone neighborhood.4 Inc., 366, 373-374 con- (1977) (Liacos, J., Slaton, Paris Adult Theatre I v. 49, 413 U.S. curring). 103-113 Emerson, T. (1973) (Brennan, J., dissenting). of Freedom of System Books, 495-503 Expression (Vintage of the Commission on 1970). and Report Obscenity Pornog- Emerson, 51-62 Toward raphy a General (1971).5 Theory Amendment, the First Yale 877, 72 937-939 (1963). L.J. Free Richards, and Law: Toward Speech Obscenity Moral Amendment, First 123 U. Pa. L. Theory Rev. 1 Slaton, SeeParis Adult Theatre I v. 49,105-107 413 U.S. (1973) (Bren York, nan, New 767, Redrup J., dissenting); (1967); v. 386 U.S. 769 Aucella, 138, Revere v. 369 (1975), appeal Mass. 142-143 dismissed sub Invs., Corbett, Charger Inc. v. Cf. Erznoznik nom. 429 U.S. 877 (1976). Jacksonville, 205, v. 422 (1975). U.S. 208-212
2See, Heights, Lehman v. Shaker e.g., 304 (1974). 418 U.S. 3See, Slaton, Paris Adult I v. 49,105-107 Theatre e.g., 413 U.S. (1973) York, (Brennan, J., dissenting); Ginsberg v. New 390 629 (1968); U.S. Ohio, Kaplan 378 195 (1964). v. U.S. See also v. Jacobellis Califor nia, Michigan, Butler v. 120 Cf. 352 (1973). U.S. U.S. 380 I do not consider to minors since (1957). distribution in detail it is not in 28; volved in case. See c. this G. L. c. St. 917. Theatres, Inc., e.g., Young Mini 4See, American U.S. 71-72 ; (1976) Grayned Clinic, Rockford, Framingham Cf. Southborough, Inc. Selectmen 287 n.13 . (1977) 5The Report Obscenity Pornography Commission and recom repeal forbidding explicit mended the of laws dissemination sexual (id. 51-56), adoption at consenting “public adults display” designed protect unwilling laws viewers from offensive de 60-62, activity (id. pictions adoption 67), pro of sexual at laws 56-60, (id. hibiting pornography 66-67). dissemination of to minors 557, 394 U.S. 45, Stanley Georgia, 767, York, v. New (1969); Redrup Comment, Obscenity In of a “Decent Society”: Quest *12 49 Rev. Court, L. (1973).6 Wash. Burger is to fundamental to and receive ideas The right express 564. When no at See Georgia, supra our society. Stanley involved, are as is the case behavioral consequences public 16 material, art. view or read when adults consenting of See the unfettered exercise this right. guarantees 938; Richards, U. L. Rev. Emerson, 72 at 123 Pa. Yale L.J. 82-90; Comment, 49 L. 118-123. This at Wash. Rev. at the ex- freedom is not confined to of of speech guaranty are offensive to the majority. of views which not pression is free for those who agree Freedom of “not speech thought hate” with us but that we thought (empha- freedom for Schwimmer, 655 sis United States added), overruled Girouard J., (1929) (Holmes, dissenting), States, 328 Obscene United Richards, 123 U. Pa. L. Rev. ideas and See express opinions. Therefore, ideas are 79-82. however distasteful these some, of them art. restriction access to con- by prohibits adults. senting
However, and nature of obscene materials special effect on the State’s have recipients justify they unwilling It an is assertion of interest in recipients. protecting erotic material presently accepted premise exposure to “a his wishes has all the characteristics person contrary immediate, direct, The is and assault. harm physical action. Such com- not controllable by regulating subsequent classified ac- munications can therefore realistically Moreover, view, from a different forc- point tion. slightly an invasion of another constitutes upon ing obscenity person also falls outside the system his and for that reason privacy, — Mexico, Dakota, Vermont, Iowa, Montana, Six New South States — obscenity only prohibit and West have enacted statutes which Virginia Lockhart, See From the Chill of Uncer Escape distribution to minors. Amendment, 9 Ga. L. Rev. Sex and The First tainty: Explicit nn.12, 13 (1975).
Commonwealth o. Trainor. Emerson, freedom T. expression.” System Books, Freedom of Expression (Vintage 1971). Allowing State of obscene material when such regulation only material constitutes an intrusion an unwilling public on minors would adults to recognize rights consenting receive uncensored ideas and would opinions respect of others be free rights of a harm- equivalent ful assault. physical
Moreover, such an to the statute approach obscenity would serve beneficial This court has rec- many purposes.7 formulation of re- ognized standard obscenity that we be ever quires that the fine line between vigilant protected expression transgressed. Commonwealth Main *13 are not trained task, for such (1976). Judges a and they ap- are not able parently to the standards apply accurately which have been “In a series of cases developed. long Court has Supreme with two ex- invariably, inexplicable reversed all based on ceptions, of ob- judgments findings in cases scenity which involved all of al- apparently types leged ‘hard-core pornography. phrase pornography,’ ... little more is than a cliche which has been defined case, nor it has been a for the af- any premise apparently firmation even one of of judgment guilt” (footnotes Horton, Commonwealth v. omitted).
175-176 (1974) J., The current test (Hennessey, concurring). in Miller which enunciated California, U.S. to offer no solution this (1973), appears easy problem. See, Georgia, e.g., (1974) (no jury Jenkins could find the film “Carnal correctly Knowledge” obscene). course,
Of I do not think that this avoid all will approach inherent the area problems By obscenity. focusing minors, on however, intrusions or unwilling public approach Not least such benefits is that such an would serve “as guard against surprise an anchor to windward and as a in case of some rulings Supreme future shift Court the United States.” Monosson, Commonwealth v. 330 (1966) (search warrant affidavit). v. Trainor.
Commonwealth obscenity litigation now uncertainty pervading some de- are accustomed Courts, which be eliminated. could be bet- circumstances, would of factual issues in light ciding existence turn on the which disputes ter able to adjudicate or ar- role of censors in the than to serve intrusion such an supra Horton, at 178 of taste. See biters concurring). (Kaplan, J., of abundant empiri- “notice also takes
Such an approach has tolerated increasingly community evidence that the cal X-rated and literature displays pornographic permissive supra Horton, movies.” (Hennes- “seven- on another than embark Rather concurring). sey, J., effec- and validity confusion ... teen years [of] id. statutes,” at 174 J., tiveness of obscenity (Hennessey, efforts and those direct courts’ I would concurring), is an in which there instances to those prosecutors police the nearly impossible rather than to assault on public, of obscene dissemination laws task of enforcing against & adults.8 See Grant Angoff, to consenting Rev. 36 10 R.U.L. Massachusetts Censorship, of a thrust on an unwilling there is no evidence Since in- or audience, neighborhood, captive public, minors, I reverse the convictions. would volvement of *14 Balthazar, (1974); Commonwealth Common Scagliotti, Reilly, See also King, ante wealth inference to be drawn from primary App. Ct. is that there are by these cases presented of circumstances variety private into the to intrude ability of the Commonwealth limits This limi sexual conduct. in the area of consenting adults behavior personal of of some of the most as it does in the context occurring tation by consenting viewed or read apply choices well life’s adults.