*1 cases other want this and the for in a days posted for 60 was prosecution al., Appellants, Norman et G. MOORE of- place in the court clerk’s conspicuous then dismissal was The order of fice. Texas, Appellee. The STATE of the oth- September signed on No. 14903. a mat- As on December er decree 1969. counsel appellants their of law ter Appeals Texas, Civil knowledge that charged by law Antonio. San had rendered decrees been of these both June signed, knowledge such but with go nothing time permitted Rehearing did As Modified on Denial July 28, 1971. trial could for new by in which motions judg- permitted filed and such have been Concurring Opinion July 28, 1971. decrees. to become final ments Rehearing Sept. 1, Second Denied con- Appellants’ of the case as statement and the made their brief record tained summary judgment hearing show
conclusively coun- appellants and their prevented present- from either
sel were allegedly defense their meritorious filing for new trial motions
fraud, ap- wrongful accident or conduct of also
pellee its record counsel. Such conclusively negligence that fault
shows in fail- their own appellants counsel keep duty to discharge their own
ing to proceedings as to
themselves informed at least
in this case into and entered was part present their failure cause of to file defense and of their failure
such al- for trial within the time
motions new
lowed law.
Therefore, appel- for reason conclusively the second
lee established cause third enumerated elements of the exist, action for bill review did not correctly the mo
the trial court sustained summary judgment.
tion urge that
Appellants in their brief this case determining factor posting list of cases
whether done clerk’s office as was
dismissal appel adequate
in this case notice
lants. indi- hold that it was for the reasons
We above.
cated judgment is affirmed. *2 Antonio, Hibler, ap-
Ausburn & San pellants. Cater, Butler, Atty.,
Ted Dist. R. Emmett Smith, Attys., Donald H. Dist. Asst. San Antonio, appellee.
KLINGEMAN, Justice.
appeal
obscenity
An
This is an
case.
granting
trial
an order of the
temporary
enjoining
sale
injunction
magazines,
of certain
books
“Specific
items
Title
called
[hereinafter
enjoining the sale of
Order”], and also
and items
magazines,
similar
books
[here-
inafter
Items
called “Similar
Order”].
error,
points of
Appellants assert five
Specific
Title
of which attack
two
Order, and
Order,
Items
two the Similar
constitutionality
one attacks the
proceeding was
which this
statute under
Although appellants’ points
brought.
at-
overlap, we will
error
extent
to some
applicable,
tempt
opinion,
in this
insofar
separately.
orders
to discuss the two
es
well
guided
certain
areWe
appel
in the character of
rules
tablished
passing upon
required
late review
To
injunction.
granting
temporary
aof
temporary
of a writ of
the issuance
warrant
show
need
injunction,
applicant
injury;
probable
and a
right
probable
later cases
will
Some
he is not
to establish
required
definition three
have stated that under this
Transport
finally prevail
litigation.
in the
coalesce,
must
Trans
elements must
Company of Texas v. Robertson
(1953);
established that:
ports, 152
Tex.
S.W.2d
Co.,
Ramey
American Ins.
v. Combined
of the material
(a) The dominant theme
*3
Antonio
(Tex.Civ.App.
S.W.2d 523
— San
prurient
a
appeals
taken
a
as
whole
Buie,
1962,
Cargill
343
writ);
S.W.
v.
sex;
interest
in
1961,
2d
(Tex.Civ.App.
746
— Texarkana
well settled
e.).
(b)
writ ref’d n. r.
is also
offensive
patently
The material
to the narrow
contemporary
is limited
our review
because it affronts
commun-
of the trial
question of
action
ity
relating
whether
standards
temporary
granting
denying
matters;
in
or
a
representation
court
or
sexual
injunction
clear abuse
constitutes
(c)
utterly
re
The material
City of
Films,
v.
discretion.
Inc.
Janus
deeming social value.2
Worth,
616,
163 Tex.
358 S.W.2d
Fort
Foundaries,
Inc. v.
(1962); Texas
589
767,
Redrup
York, 386
87
v. New
U.S.
Foundry
&
Workers’
International Molders
1414,
515; A Book
5.Ct.
18 L.Ed.2d
Union,
239,
Tex.
248
460
151
S.W.2d
Named
of a
Cleland’s Memoirs Wom-
“John
Ranches,
Eagle
(1952);
v.
Briscoe
Inc.
Attorney General,
an of Pleasure” v.
383
Dist.,
Pass Ind.
118
School
439 S.W.2d
413,
975,
1,
16 L.Ed.2d
5 and
86 S.Ct.
U.S.
1969,
Antonio
writ
(Tex.Civ.App.
— San
6.
e.).
ref’d n. r.
Constitutionality
Statute
Obscenity is not within
area
con-
press.
stitutionally protected speech
point
appel
fifth
error
By their
States,
476,
v.
Roth
354 U.S.
77
United
lants
the trial court erred
assert
1507;
1498,
1304,
United
S.Ct.
1 L.Ed.2d
temporary injunctions because
granting the
Reidel,
States
91
v.
U.S.
Ann. Texas
Article
of the
Vernon’s
The brought before us were magazines, some 170 newspaper-type a pursuant to publication, Section of books, Article paperback some 307 with and this expressly section titles,5 was held to be suggestive 10 reels pic- of motion constitutional film, of the above cards, both cases ture of one deck and one simu- cited. do regard We un- penis. Article 527 lated male constitutional insofar as any issue involved A number of witnesses testified. There concerned, ap- the case before us and student, was evidenec that on a one occasion pellants’ point fifth error is of overruled. years age, sixteen in the store of been approximately forty at minutes
Specific Title Order there; police same officer that time was Appellants, by third fourth their and the minor shown some the items was points error, Specific including Title attack the therein both a male simulated supra, Conover, judgment provision 3. The Court Newman v. shall contain a direct- person [F], 3 to the sheriff held Sections 1 and 13 constitu- surrender to tional, county but held action Section unconstitu- in which the was brought posses- any tional. The Court of matter in his Texas obscene Scott, they supra, State v. stated that sion sheriff directed to and such shall be agreed destroy holding with the that seize and such matter.” Sections constitutional, and 13 are re- [F] but Horny Swap Job; Ass; 5.The Blow and judgment served as constitution- Pussette; Prissy Prune; Hung; Pink ality of Sections 3 and Operation Poontang; Hard; Hot and My Cherry Cash; Assets; Kiss Suck 13: this Section “The district courts of Me, Me; Me; Virgin Balls; judges Fix to Love have state and thereof shall Boy-Studs ; Orgasm; power, authority, jurisdiction, and Their Men Mass full and Top upon any county Again; Free Pus- application by C.O.C.K. Comes district or Couch; sey; respective attorney jurisdic- a Perverted Sounds within their from Way Bride; Job; any tions, attorney general The Two Sin-Teen or to issue Me, Me; proper restraining orders, tempo- Who Want Use Hurt Rooks; Broads all and. rary Sheets; any To; permanent injunctions, Hot Turn Down and and Bed; My Body, Cocktail; processes Oral appropriate Tour other writs and carry to Whore; Relations; provisions Derelict Cenital out and enforce the Anal; Way In; The restraining From to Hard Oral this article. or Such orders Virgin injunctions any Torture; may prevent Trapper; To Make Sex to issue Swap Nympho Meat; Cry; person any The violating provi- Sister from of the Fantasies; Lovers; However, Masturbation sions of article. re- Cay Sexy Girls; Spread; straining injunction Her Cream order shall issue or upon Kitty; Young Stuff; Licked but except person sought Hot notice to the Flesh; enjoined. Beaten; person A Never to be Such shall be en- Mouthful of Come; Are; Come You Hot Place to to trial of the issues within one titled day Split Open; joinder Confidential; Incest Me after of issue and a decision Gay; Hole; Naked Gome The Glorious rendered shall be the court within two Groovy Nudist; Place; Flicks; days Hot of the conclusion trial. Development, Pussycat; judgment Its Vari- Phallic the event that a final order or Extremes; Exploration; injunction against person ations and Nude entered sought enjoined, Screw. to be such final order tickler”; porary relating organ community “French standards and a and female representation were of sexual of such items prices that the some local, scope; him; also looked matters on a state and national and that he discussed with any utterly and magazines. There matter at of the some socially redeeming one oc- value. The court fur- an officer testimony of ther he asked found that each and all of the exhibits in the store, casion he was while exemplified of the and are hard-core ages pornography, of three the identification base, therein, they filthy, degrading, un- customers all of whom propriety front of exceed all bounds picture der A twenty-one. evidence, decency. into common court further such store was introduced sign pander- on the found that there thereon there is a was evidence of and shown ing6 part agents, seeing рarts of the on the door: “Notice—If service and employees defendant; body you, nude tends offend do not that the mate- maga- rial testimony designed enter.” that the not to deal sex in a There price manner way ideas or in ranged zines and books therein to advocate literary, value, has $6.00, testimony of sales scientific artistic $3.00 throughout A but that sex is captain some used the material customers. solely squad pander profit. vice testified that had looked sex some of movie films store *5 carefully and re- We have examined through they browsed the books and that record, including the viewed the entire he had seen in were about worst ever maga- The contents of exhibits. basic any public display; book store and on nudity, depictions photographic zines are appeal in his opinion they definitely did and female including unclothed human male prurient interest; ato and that he did not genitalia proximity, in close and acts of any redeeming feel socially there was value perversion. sexual The books consist of reporter newspaper in such material. A descriptions in coarse and detailed verbal testified that viewed some of masturbation, vulgar acts of language of maga- movies and had looked at most of the bestiality, homosexuality, sodomy, sexual books, they zines and and were ob- intercourse, sadism and masochism. Pic- scene; generally the dominant theme tures run descriptions gamut and appealed prurient taken as a whole to the lesbianism, fe- experiences sexual such as interest; they utterly were masturbation, homosexuality, flag- male redeeming patently social and value versa, female, ellation male and vice they offensive because affront contem- descriptions acts of of different bizarre porary community relating to standards sexual fe- between male and intercourse description or representation of sexual enjoined male None characters. matters. story films portray any what- purport judge The trial had all of the exhibits soever, but rather of simu- each consists hearing before him and after the evidence lated suggested abnormal sexual acts exhibits, examining found man, woman, between woman man through 12 through exhibits 1 8 and 489 multiple groups of same. Most of the within the definition of Arti- obscene action filmed with the camera close Code; cle 527 Penal that the Texas proximity the genitals. matter, dominant theme of the material and findings. trial court’s with the agree whole, We appeals as a when taken its discretion not abuse did The trial court sex; patent- interest in that the material is temporary in- part of granting that ly it affronts contem- offensive because 495-496, States, Pandering 77 6. has the busi- been defined as United Ginzburg 1304, supra; purveying graphic v. United ma- ness textual or 942, openly States, appeal 383 U.S. terial advertised 31, erotic interest v. L.Ed.2d of customers. Roth duties, “Specific and should junction herein referred to not be such as would Title call Order.” interpretations, him for inferences Holguin, or conclusions. Villalobos v. Items Order Similar (1948); Tex. 208 S.W.2d appellants of error By point first their Walton, Corp. Gulf Oil 317 S.W.2d grant- erred the trial court contend that (Tex.Civ.App. 1958, writ); Paso — El injunction a temporary entering Archer, Practice, Injunction Lowe & Texas Similar Items Order because: Extraordinary Proceedings, and Other Sec (a) There is pleading proof 355, pages tion such relief.7 Only by reference to exhibits (b) Such order is not in terms. through appel 8 and 12 through 489 can
(c) lants what Such order does not know are restrained from describe doing in reasonable detail the act or Items sought acts Similar Such Order. provisions restrained. Similar Items Order violates the provide of Rule which that the act (d) Such order makes reference to other sought or acts to be restrained shall be de documents to describe the act or acts sought scribed in reasonable detail and ref to be restrained. erence to the complaint or other documents. Specific specificаlly Title Order requirements of Rule manda 683 are books, identifies title magazines tory. Transport Company Texas v. appellants films that cannot sell or distrib- Transports, supra; Eastex Wild Robertson However, ute. the Similar Items Order etc., 450 Jasper, Ass’n life Conservation enjoins appellants selling or distribut- S.W.2d 918 (Tex.Civ.App. ing any matter — Beaumont or matters of a like nature City of Fort refused, e.); writ n. r. exhibits, similar to the other mat- McDonald, Worth v. S.W.2d ters the dominant theme of *6 1956, (Tex.Civ.App. Worth writ — Fort matter taken as a appeals whole the e.); Rodriguez, ref’d n. r. Gonzalez v. prurient interest in in sex, and which the (Tex.Civ.App.—San 250 253 to S.W.2d An patently it offensive because 1952, nio writ). community contemporary confronts stand- relating ards repre- to the We are of the portion that the matters, sentation of sexual and the matter of the judgment herein described and re- utterly redeeming without social value. ferred to as the Similar Items Order is overbroad and 683, in
Rule Texas Rules violation of of Civil the manda- tory Procedure, provisions provides 683, evеry of Rule grant order T.R.C.P. does not sufficiently appraise injunction every restraining appellants an and of the acts order shall set forth restrained doing. the reasons for its is from effect, ; terms; upon the court is passing suance shall in be shall the ob- scenity books, magazines, of newspaper by describe reasonable detail and not and it, films not complaint perhaps reference to before and the or other docu not now in existence; prohibits ments the and it sought generally act or acts to be the restrain defendants from violating penal ed. statute.8 clear, precise or guide definite elementary It is injunction an must concise, definite, be clear and lines. leaving appellants’ the We sustain point first of person enjoined in no doubt about his error. Appellee’s petition specifically
7.
State,
identifies
(Tex.Civ.
Club v.
ment, referred herein described and attempts by Court of ” Order; and as so re- the “Similar Items United States establish standards for formed, judgment is affirmed. regulation obscenity have resulted in myriad opinions2 of inconsistent which justifies the observation Mr. Justice
CADENA, (dissenting). Justice Harlan, develop- “The central dissent: emerges ment that aftermath of would portion also set aside States, Roth v. United 354 U.S. S. order, trial court’s described Justice Ct. 1 L.Ed.2d is that no stable Klingeman Order,” “Specific as the Title approach problem to the obscenity yet has proscribes which nearly distribution been Book, devised this A Court.” etc. books, magazines, films and other Attorney Mass., General of Com. items. 413, 455, 975, 996, L.Ed.2d (1966). For purposes opinion, will
be assumed that the relaxed standard of
review
the courts
apply
of this State
Despite
“majority
the lack of a
viеw”
in temporary injunction
may properly
cases
among
justices,
the nine
the salient fact is
adopted
uphold
injunc-
a temporary
that,
“pandering,”3
absent evidence
or a
*7
expression.1
tion
Appellants
which stifles
suppres-
claim
statute
that the
on which
prac-
do not here contend that the Texas
sion is
reflects
and limited
based
a
tice, which allows the
a
issuance of
tem-
minors,4
state
a
cir-
concern
set of
porary injunction if
applicant alleges
a
permit
appeal
cumstances which
of
Roth,
Grapes
Obscenity
1966
of
Oases:
(1964),
v. State of Ohio
1.
Jacobellis
Cf.
Subsequently,
Sup.Ct.Rev. 7,
with
1676,
56-57.
184, 190,
6,
n.
84 S.Ct.
U.S.
378
justices
agreed
dissenting,
two
the Court
1679,
think
we
12
793:
“Nor do
L.Ed.2d
analysis.
Redrup v. State of
adjudication
with this
duty
our
of constitutional
1414,
York,
767,
U.S.
S.Ct.
by
New
386
87
properly
re-
relaxed
be
this area can
(1967).
material “to be assessed nearly Supreme unanimous Court of proba- interests its intended sexual Minnesota appel- “In answer to the said: recipient group,”5 the has ble Court never lants’ assertion that the convictions are unsupported by any bearing upon material to be obscene. evidence held
social value of
accept-
the books and their
Despite
divergent
of the mem-
views
by community standards,
ance
we can
tribunals,
highest
bers
this nation’s
say that such
nothing.
evidence would add
ap-
must
which the Texas courts
standard
speaks
material
If it
itself.
is not
legislature.
formulated
our
ply has been
obscene,
meaning.
the word has lost all
the extent
the consti-
may be
Whatever
identify
it is
We
for what
and hold that
power
proscribe
a state to
ma-
tutional
it is оbscene as matter
of law.” The
sex,
legislative
dealing with
our
terial
pronouncement
authoritative
nature
this
material
to outlaw such
branch has chosen
somewhat weakened
that the
the fact
theme of the
only when
the dominant
(a)
judgment of
Supreme
Minne-
Court
appeals
material,
whole,
taken as
opinion
sota was reversed in a three-line
pat-
the material
interest;
(b)
Supreme
Court
the United States.
contem-
ently
it affronts
offensive because
Minnesota,
Hoyt v.
399
90
relating to the
porary community standards
(1970).
cases which of obscen- or moral jective of the elements reflection of taste consideration on the ity permitted reliance than jurors individual of individual or outlook factfinder. subjective reaction judges. through the law Since its func- in a case may argued that it be ‘applying contemporary While tionaries is com- there is a jury a court wtihout tried to munity determining standards’ what *** a arriving at deci- presumption obscenity surely constitutes all of in mind judge rational, will have sion the must be deemed and therefore offense, area in this elements obscenity, to relevant the issue to al- par- has no responsibility he judicial light low to be shed on what those ‘con- draw. to In expertise on which ticular temporary community standards’ are. judicial effect, to take he is called on interpretation depend ought Their not theme the dominant whether notice of solely necessarily limited, on the hit-or- in- appeals to a material miss, subjective view what con- it affronts sex; whether terest juror to be believed the individual relative community standards temporary judge.” [sic] utterly it is sex; and whether opinion, my redeeming social value. correct, If this conclusion is the record judge jury qualified neither nor support does suppression before us to de- fact so as findings such make of the nearly “Spe- 500 items to which the prive First Amendment defendant of applies. cific Title Order” than protection without more evidence itself.” Only two witnesses testified concerning the obscene nature the materials. The Frankfurter, steadfastly who Mr. Justice police first awas officer who had been a protect- agree refused that the freedoms squad member of the vice An- San occupied a ed the First Amendment Department tonio twenty Police for almost out, “preferred” position, pointed years. At time he testified concurring opinion in course of his Smith eight the first had been exhibits admitted California, People State testimony basis for his evidence. 147, 165, L.Ed.2d 205 can by setting best illustrated out full that: (1960), attorney’s question relating district first “ * * * 1, 2, “Well, community standards exhibits 47: based psychological upon through physiological conse- State’s Exhibits Numbers 1 your quences questioned magazines, upon can ex- literature as based hardly perience of fact be established as vice officer since based matter * * upon your experience many times what through experts *. Of except successfully pornogra- testimony experts prosecuted would course the *9 phy, you as to determining formed an displace judge jury not have Extremes; Bottoms and magazines Its Variations en- four were exhibits These Study Sado-Masochism. Up; A Development, Couples; Phallic titled Wild 400 newspaper had been a he objects appeal
whether or not to a the effect these reporter years; several that because prurient interest?” of his avocation people, he more met “from This pillheads officer did not read maga- the four college professors,” tо than does zines, them, but merely through “browsed” average person; and that he had known looking only pictures. at the He some testified sexual deviates. magazines appealed pruri-
that all four to a interest, offensive, ent patently newspaper This reporter asked ques- was lacked redeeming social Neither value. concerning magazines, tions than more 160 this, any witness, nor other testified that paperback more than books, 300 and 10 paperback two books identified as exhibit reels of film. He saw these materials for (Kiss (Cherry and exhibit 6 My Assets) first time about hours before he began testimony. his surprising, not Gash), are obscene.
then, that he testified that he found it a physical (a impossibility to read all reference to exhibit deck With bearing books, of a nude male and pictures only cards and that he had viewed five (described female) and exhibit nude films. of the article court’s order as a rubber the trial penis” “which resembles a testimony clearly His reveals the nature Justice male opinion as a Klingeman’s “simulated of his examination of the exhibits. two that these
penis”), the officer testified inquiry concerning answer to an the num- interest, or “appeal prurient to a articles “seen,” ber of the exhibits which had he communi- contemporary confront answered, Handled; he [sic] “Seen and handled — standards, redeeming ty without and are way. let’s it that paid do of these Some I There is (Emphasis mine.) social value.” very to, handled, little attention but would I to the ef- witness testimony from say per maybe to 98 per cent.” —95 cent — that, ex- two fect with reference these previ- He had “looked at” the exhibits statutory hibits, all of the three elements during ous afternoon a recess taken statute, definition coalesced. Under our purpose permitting reporter the court appeals to unless it is not obscene place identifying on numbers more than interest, offen- prurient patently exceptions, few he With exhibits. value. redeeming social sive and is without identify only could exhibits the num- is, therefore, testimony that no oral There placed reporter. bers them the court 8 is obscene. either exhibit 7 or exhibit say He testified that all he could not magazines appealed
of the to a Exhibits do not consist maga- interest. With reference to allegedly testified, at,” obscene material. he zines had “looked he again,
“Speaking generally, using kind con- testified who only yardstick concerning other witness majority awas the material majority magazines saw, cerning the nature that I “beat” primary reporter say He newspaper would whose obscene].” [that Bexar hearing he identify magazines did not which the time testimony com- His had those County distinguished “seen” as Court House. only seen had that he those merely which had “handled” and pels conclusion he is, there- There He through 486. which or handled. exhibits he not seen the ob- relating testimony magazines did con- fore, identify oral not which 488 and labeled “majority” non of exhibits stituted the scenity vel concerning the testimony categorically that obscene. He testified testify witness magazines “some” of the were obscene qualifications obscenity is obscene, elements concerning the “some” were
4Q1 magazine identifying one specifically any The (a) Giving Books. testimony two or the other of the being as one newspaper of the reporter its maximum categories. possible effect, it amounts no more than
statements to the effect that “some” the are books obscene and that “some” are not. books, the paperback Concerning the is difficult to understand the mental “some” that reporter, again said newspaper processes by testimony which that “some” not obscene. are and “some” are obscene of the are books obscene and that “some” spe- exception the two Again, with the not is finding are converted into that succeeding next in the discussed cific books all are books obscene. specific identify the not he does paragraph, obscene he considers titles which be not to he considers titles which believe
specific prepared addition, am not In a book obscene. whether determine person can “handling” it. merely by obscene is testimony con- specific gave This witness books, Again, the news- Magazines. paperback (b) cerning two of say any (entitled reporter Box not testifying paper that exhibit did testimony was (entitled As magazine and exhibit 445 Come is obscene. His Buster) Are) expression opinion You are obscene. limited majority magazines
that “some” or He had five viewed films. He said that “some” are not. To are obscene and (exhibits five three these are obscene A repeat, propositions, “Some is two cannot, 293) (exhibit 287) and one A is B” and “Some not B” expressed opinion not no obscene. He any system logic, yield the con- rule of concerning 289) the fifth (exhibit film A is clusion “All B.” which had he viewed. (c) police The Films. The officer did testi- The most that can said for the testify any of films included in not they
mony these is that two witnesses regarded order could be court’s 1, 2, 3, (magazines), that exhibits testified say he obscene. did had viewed He (films), (paper- 394 and 445 place appellants’ ten films at of business. are, opinion back in the of one books) sup- he the ten But the time testified witnesses, obscene. other the two pressed been introduced films not out, already pointed no one As has been as exhibits. evidence or even marked 5, and concerning 4 and testified exhibits tending to indicate testimony There no testimony police officer con- police which officer that the ten films 8 fails show cerning exhibits 7 the trial are the ten which viewed films elements. required three coalescence fact, suppressed. his obscenity vel non of exhibits compels the of the films which he viewed testimony no is not in issue. There not the films intro- conclusion that and 489. concerning exhibits duced evidence. The newspaper reporter, course, ex- Through 486 Exhibits 13 pressed opinion concerning the five films which he did nоt view. the five Of Except (exhibits two books are, films viewed, only three (exhibits and the three films 445) opinion, his obscene. He stated one was any one testified that 293), 292 and no one expressed obscene and con- through the exhibits numbered 13 cerning the other. obscene. *11 relating temporary community standards is, therefore, testimony con- There description representation of sexual cerning of the ten films. six that either material.” There is no evidence 4, 286, 292, 293, 1, 2, 3, Exhibits possessed any knowledge witness concern- 394 and 445 ing relating to the community standards description representation of sexual ma- exhibits These are that he terial. Neither witness testified I obscene. said were specifically witnesses any knowledge concerning had special furnishes in the record which nothing find local, community, mores of state or wit- that the conclusion any support for the national, respect to such with opinions express qualified to nesses representation. subject. on the disrespect police is no to our officers question of whether answer to the An to insist that in the area of free- sensitive prurient interest appeals material expression dom of “decisions be made ac- is to be answer person, if the average cording rigorous to more standard em- be based any weight, must given hands,” ployed by expertly more trained psycho- complex obviously knowledge of than by standards fixed members of the reaction physiological factors logical Rucker, F.Supp. squad. vice Poulos lay- pretend It is naive to stimuli. (M.D.Ala.N.D.1968). knowledge.8 possess such
men reporter, claiming newspaper while necessary appeal prurient Even if the knowledge appeal some present, what would is not to be anathema- deviate, tized, interest of a sexual statute, under our unless it is also knowledge such reference claimed no with “patently it affronts con- offensive because presumed consequences cur, however, “Of all with the arousal associatеd exposure stimuli, emotions, fear, anger, to erotic the effect of with other such as probably etc., sexual disgust, excitement the most and hence are widely commonly nonspecificity held and In mentioned. to sexual arousal. The physiological responses survey national conducted for to sexual stimula- (Abelson 1970) al., methodological problem Commission et tion is thus a 72% ** of adult males and of adult females *. area 63% they popu proportion general indicated that believed ‘sexual “What people sexually,’ although sexually by materials excite erotic ma lation is aroused * * considerably reported experiencing fewer *. terials is difficult to assess body growing 1953) this effect Kinsey (et al., 1948, employ themselves. The Thus question of research which bears on this an intensive ‘clinical’ interview * * * shows, general, photographs, repetitive questioning stor- found ies, depict and films which various as- of males and of females 32% 77% pects produce sexuality reportеd having human excite- some time sex been at large proportion popula- ment in a ually drawings, ‘photographs, aroused knowledge area, pictures tion. Available however, portrayals in this motion and other complicated by continues to be sexual action.’ considerable contrast problems certain Abelson, (1970), technical in the al., measure- et asked a national interpretation physiological probability sample they ment and whether believed psychological responses alleged to sexual effects of sexual materials various * * actually they stimulation *. had occurred and whether apparently personally. experienced “Human sexual arousal effects such range somatic, Twenty-three percent manifested a wide the males and psychological, responses. reported and behavioral of the females 8% at some time been Hence, may sexually sexual arousal be associated excited * * n .” The physiological changes, in, Report with ple, for exam- sexual matters volume, temperature, Obscenity blood muscle on (1970). Commission tension, respiration, pupil Pornography 164, dilation. Changes parameters may in these also oc- bawdy the mistress of a house. This is, think, inter- average person. It an *12 pages. remaining pages takes 10 that, stating that some esting note after to of the book her into detail initiation prurient inter- appeal of the materials to experiences, various sexual from a les- de- average person, after and est prostitute bian to encounter with sister with a normal male scribing himself as types debauchery all sorts and of sexual urges, insisted he normal male drives bawdy houses and as the mistress of his appealed to the material that none of a variety presented This is to men. he he said under- prurient While interest. through uninterrupted the reader an suc- phrase “contem- meaning of the stood the descriptions Fanny, by cession of either standards,” did not community porary participant, as an or observer sexual are. what those standards say he knew so vile that of the male adventures one all acquaintance with Despite wide his expert the case was hesitant witnesses nothing indi- to persons, there is types of repeat one to of them in the courtroom. they acquaintances, he and his cate gamut possible run These scenes the exchanged pillheads, or ever professors lesbianism, experience sexual as such about, discussed, contemporary or views masturbation, homosexuality be- female repre- relating the community to standards young boys, tween the destruction of material. sexual description of sentation descrip- consequent gory maidenhead with tions, virgin young the seduction of a isman pornography for one “What female, boy, flagellation the male genius to Law- laughter of another.” the versa, and vice followed fervid sexual rence, Obscenity, print- Pornography acts, engagement, and other abhorrent Censorship 69 Literature and ed Sex bi- including separate over two dozen ac- ready to am not ed.1953). (Moore descriptions zarre of different sexual officers, news- police cept notion the between and female intercourses male are, officio, ex judges reporters, paper sequence characters. In one girls four our distinguish, on the basis of to qualified bawdy in a required house are in the standard, the chuckle statutory between presence of one another to relate the the lascivious smirk genius the the lurid details of their virginity loss of pornographer. glorification their of it. This followed evening by ‘publick same trials’ laymen conceded it be if Even girls engages which each the four is obscene what to determine competent sexual intercourse with a man different may judges trial statute, under our Fanny witness, while others with finding fact necessary make giving a detailed of the move- in- themselves, the the materials basis couple. ment and reaction of each stand. cannot here junction “In each of the sexual scenes the ex- books, paperback reference With posed bodies of participants are de- popu- following synopsis of book scribed in minute and individual detail. Hill is relevant: Fanny as larly referred to pubic hair is often used for a back-
ground to the precise most vivid and descriptions than a response, condition, nothing more “Memoirs size, vividly shape, described and color minutely and of the sexual or- series gans before, during starts orgasms. The book and after episodes. sexual girl, 15-year-old There are transitory passages some short Hill, young Fanny household between the episodes, seek various sexual but arriving in London they office employment part most an set the scene goes to She work. identify participants she meets happenstance for the next through where orgy, or smutty make film, references and declaring the “The Game cоmparison past episodes. Love,” obscene, described the film
follows: be no “There can doubt that the whole purpose of the book is arouse the film, “The case, as an exhibit repeti- interest. Likewise projected before and us. viewed episode episode tion of sexual after end, that, We found beginning
the candor with
are described
story
the thread of
is supercharged
”
*13
‘patently
renders the
offensive.’
book
by
with a current
generated
of lewdness
a series of illicit sexual intimacies and
from the
description is taken
The above
acts.
In
introductory
flying
the
scenes
in
Clark
of
dissenting opinion Mr. Justice
start
is
year
made
boy
when
old
of Com.
Book,
Attorney
A
etc.
General
v.
completely
bathing
shown
nude on a
86 S.Ct.
Mass.,
383 U.S.
445—
in
presence
group
beach
the
of a
and ex-
975, 991,
1 (1966),
16 L.Ed.2d
younger girls.
plane
On that
the narra-
holding
presses
with the
displeasure
his
proceeds to
the
tive
seduction
reveal
irrele-
obscene. With
the
book
boy by
this
a physically attractive woman
the
of characters
changes
vant
in
names
enough
old
to be his mother.
the
Under
review
locale,
Clark’s
and of
Mr. Justice
experience
influence of this
and an ar-
of the
Fanny Hill
accurate
is an
rangement
it,
boy
repeat
thereupon
the
involved
paperback books
worst of the
engages in
girl
sexual relations with a
this case.
age.
own
his
The erotic thread of the
story
carried,
without deviation to-
of the
which the trial
One
books
idea, through
ward
wholesome
scene
As
this case is Business
declared obscene
graphically
after scene.
The narrative
of the
(exhibit
This is one
150).
Usual
pictured,
nothing
except
with
omitted
Supreme
Minne-
books which the
Court of
sexual
those
consummations which are
State,
Hoyt v.
sota held
obscene in
to be
**
plainly suggested
the
supra,
observation that
book
with the
spoke
for itself and
the court
difficulty recognizing
for what
the book
can,
of the
us
Nine
films before
with
may
directed
criticism
be
is. Whatever
described,
complete
similarly
accuracy, be
reversing this
per
opinion
at the
curiam
except
insignificant
changes concerning
Minnesota,
holding, Hoyt
U.S.
v.
the cast of
characters
The
locale.
it is
(1970),
In Times
Corporation
Film
City
v.
men. Neither of
of this film
episodes
Chicago,
244 F.2d
(7th
1957),
supercharged
Cir.
“is
a current of lewd-
with
”
Enterprises, Inc.
generated by
ness
a series of illicit sexual
Manual
‘obscene.’
them
acts,”
478, 490,
judicially
Day,
as is the
intimacies
film,
question
(1962).
“The
tolerated
Love.”
L.Ed.2d
Game
before
is not whether
before us
again, are
magazines,
disgust-
The banned
filthy, revolting and
vulgar,
isus
the Su-
publications which
consti-
than the
in the
worse
it is obscene
ing, but whether
Court,
face
lower court
‘491’
preme
found
“I personally
tutional sense.
* *
by ex-
obscenity accompanied
I
findings
*.
revolting
Were
repulsive
shock
appropriate judicial
pressions
powers,
I
dictatorial
vested
See
disgust,
my
held not obscene.
(in
trash
destroy the
ban and
would
opinion
dissenting
in the
reviewed
decisions
kiosks
the news
infests
opinion)
* *
supra,
Hoyt,
State
*.
Otis
areas
in certain
theatres
the movie
Justice
707-709,
286 Minn.
States, including from dissenting several
opinions Court, of said think it towell
point out that in Reidel, United States v. 28 L.Ed.2d CORPORATION, Appellant, ZALE was delivered on May justices upheld six the constitutional- ity of a statute which prohibited the distri- DECORAMA, INC., Appellee. bution of obscene willing materials to adult *15 No. 5059. recipients. “obscenity It there said: not within the area constitutionally Appeals Texas, Court of Civil protected Waco. speech press” and there is no right people “constitutional like Reidel Aug. 19, 1971. distribute sell obscene materials.” Rehearing Sept. 16, Denied Thus, it seen temporary that the in- junction was issued authority under of a Furthermore,
constitutional law. the rec- fully
ord supports findings the trial court’s
that the enjoined exhibits are obscene ma-
terials as defined this law. The trial expressly found that such exhibits
exemplify and are pornography. hard-core
These materials are accurately described majority opinion, if such exhibits
are not hard-core pornography, then there thing. such It is inconceivable that
such passed materials could be off
court as “the genius.” chuckle true that there is much confusion field,
this only among opinions
various courts and judges the individual
thereof, but also among psychologists
and sociologists who have considered
issue. Many urge that adults should have
complete produce, in, freedom to pos- deal
sess, and consume whatever communicative may appeal
materials However, to them.
as was recently said majority