*1 16 v. WASSERMAN PEOPLE Opinion op the Court Obscenity—Newspaper Article. Law — 1. Criminal itself, in hence writing complete newspaper article is a A of other ma- obscenity prosecution because is not saved objectionable may not be printed in which terial (MCLA 750.343a). § Obscenity. Law — 2. Constitutional to the Federal Obscenity protected the First Amendment (US Const, Am Constitution. Trial —Discretion. 3. Criminal Law —New denying a motion Trial court did not abuse its discretion ample for a trial where there was room for the verdict new jury on the facts. Obscenity—Definition. Criminal Law —Constitutional Law — 4. average writing is obscene whether the The test of whether a person, applying contemporary community standards, dom- appeals inant theme of the material taken as a whole prurient interest. Obscenity. Criminal Law — 5. Law —Constitutional obscene; writing Three elements must coalesce for a to be found the dominant theme of (a) it must be established that appeals prurient material taken as whole interest sex, (b) patently affronts the material is offensive because it contemporary community relating description standards matters, (c) representation of sexual material utterly redeeming without social value. [3] [1] [2,4-9] Modern 50 Am Jur Am 59 Am Jur Concept Jur, Referencesi 2d, Lewdness, Indecency, New Trial 2d, Obscenity. Lewdness, Indecency, §§ fob Points 13,131, ALR3d in Headnotes 1158. Obscenity Obscenity § 22. § 22. v. Wasserman
Dissent Obscenity—Appeal 6. Criminal Law —Constitutional Law — *2 Error. Appeals judgment independent The Court must make a juy’s verdict in order to decide whether an article is obscene
in the constitutional sense. Obscenity—Words 7. Criminal Law —-Constitutional Law — Used por Shock Value. sense, although An article was not obscene in the constitutional appearing may certain words that article been used have their shock value. for Obscenity—Language. Law — Criminal Law —Constitutional 8. constitutionally liberty at to use three- and author is An buttocks, vulva, coitus, which mean urine and words four-letter literary without merit. to tell a which is not excrement Obscenity—Language. Law — Law —Constitutional Criminal 9. constitutionally one liter- cannot between The State differentiate thoughts communicating ary another, both the same work and according delicacy images, chosen to and words thoughts images. convey those L. J. Sub Ottawa, Smith, Appeal Raymond 5, 1970, Rapids. mitted Division at Grand May (Docket 7,830.) No. Decided October
James was convicted of distributing lewd, article. Defend- obscene, filthy indecent appeals. Affirmed. ant
Frank J. Kelley, Robert A. General, Attorney Derengoski, Bosman, Solicitor General, Pros- Calvin ecuting Attorney, Bussard, and James W. Special Assistant for the Prosecuting people. Attorney,
Joseph C. Legate (Marcus, Libner, McCroskey, Reamon, & Williams Dilley, of for counsel), defend- ant. P. J.,
Before: Bronson Holbrook, JJ. Munro,* in the was convicted Defendant P. J. Holbrook, jury of County before a court for Ottawa
circuit ar- filthy indecent and obscene, distributing lewd, of which he was in weekly college ticle (Stat Ann to MCLA 750.343a editor, § contrary 28.575 Supp [1]). 1970 Cum § and, of $100 costs to pay was sentenced Defendant has trial, ap- a new for motion denial his after to this Court. pealed was convicted statute under which defendant to be to determine test applied follows:
stated as sells, lends, either knowingly who “Any person *3 or transmutes or distributes, shows away, gives show distribute, lend, give away, sell, to offers either with intent possession has in his transmute, or or or show distribute, away, sell, lend, give either or who manner, in any advertise transmute, or loan, gift, for either sale offers knowingly otherwise lascivious, obscene, lewd, filthy or distribution, any book, or magazine, sadistic masochistic indecent, or writing, paper, paper, pamphlet, newspaper, story photograph, record, picture, drawing, phonograph or tape wire image, motion picture film, figure, mat- written, or or recorded printed recording any or not may may ter of an indecent character which or mechanical other means to be transmuted require or of sensory into visual auditory, representations of a misdemeanor, such shall be character, guilty punished conviction shall be upon by imprison- for ment the not more than jail year county or fine by a of not more than or both such $1,000, fine imprisonment.” (Emphasis supplied.) assignment. judge, sitting hy Appeals
Circuit the Court of v. Wasserman (Stat Supp § Ann MCLA 750.343a 1970 Cum 28.575[1]). § applied in under section eases test to be
“The whether sexual desires shall not be of this act 343a thoughts sexually improper be aroused would or segment particular comprising in those highly young, community, or the the immature segment, prudish, scien- or would leave another worldly highly so-called wise educated or the tific or sophisticated, unmoved. But indifferent and and such test shall other picture of or book,
be the effect subject complaint as a whole, considered upon any particular upon all class, but those not whom likely impact upon reach, is,
it is its person average community. the picture The book, subject complaint judged other must be by considering as a whole in its entire context, separate portions only, detached or community standards of common conscience of the contemporary period violation charged.” (Stat § MCLA 750.343b Ann 1970 Cum Supp [2]). § 28.575 question no to the fact that
There is as the de- fendant the editor to be and caused distributed question, newspaper Typi- and the article in “A Day in cal the Life of Oswald Jones.” appeal raises two Defendant issues on which we restate as follows: permits criminal Whether the statute story challenged
the selection one from the mate- newspaper, rial, and the submission of that one jury apart *4 whole? story, Day Typical “A Was the in the Life in Jones”, Oswald obscene the constitutional
sense?
Defendant does not contest the fact complies fully statute with re- the constitutional in v. United States quirements forth Roth as set (77 1 L Ed 2d (1957), 1304, Ct US 476 S pages. four newspaper consists as a whole The ap- charged writing in this offense involved The Typical page “A pears and is entitled on the last (J. Day Jones” Oswald in the Life of autobiography) James Wasserman. an Jones, page on the last are three article, In poems to this addition of one of the theatres. an advertisement any story complete refer in does not itself, part newspaper and we conclude that other story language of the statute that under in “writing” complete question in itself and prosecution of other because is not saved may printed which in the material objectionable. be
II objections been made to the instructions No have jury we court to the and therefore consider properly for determination. the matter submitted supra, obscenity In law on States, Roth v. United applicable thoroughly considered Obscenity protected by herein. is not First case A our Federal reitera- Amendment to tion of the Constitution. question opinion would this decision nor to those who not be benefit agree might say read it. that we with Suffice it to judge ruling for a new the trial in his on the motion wherein he stated: trial ample opinion
“In of the court there was jury room for decision of the on the facts.” (1966), In the of Memoirs Massachusetts case v. (86 1), 16 L Ed US 413 Ct 2d S p follows at 418: was defined as *5 21 v. Bronson, Dissenting Opinion following Roth in the in defined “We average person, applying to the terms: Whether contemporary community standards, the dominant appeals a whole to taken as of the material theme (77 prurient 1311, 489 at US, 354 at S Ct interest.’ as elab- definition, this 1 L Ed 2d at Under subsequent must three elements cases, in orated coalesce: (a) that the dom-
it must be established appeals material taken as a whole inant theme of the (b) prurient in the material sex; interest contemporary patently offensive because it affronts description community relating standards to the (c) representation sexual matters; the mate- utterly redeeming rial value.” without social reading Typical Day story, “A After Life of are constrained to Jones”, J. Oswald we judge there rule that the trial was correct presented ample jury for evidence them guilty to determine the of the offense defendant charged.
Affirmed. J., concurred.
Munro, (dissenting). agree J., I am unable to Bronson, by my colleagues. with the In decision reached question deciding whether article is “obscene obliged in the constitutional this sense”, Court is independent judgment jury’s to make a ver (1964), (84 v. Ohio US 184 Ct dict. Jacobellis 378 S Billingsley (1969), 793); People 12 L Ed 2d 1676, v. Dykema (1970), App 20 Mich Bloss 398 US 10; v. reversing (90 230), 26 L Ed Grand S Ct 2d Rapids App City Attorney (1969), Mich v. Bloss give dangerous precedent
It for this Court judicial approval stamp prosecution its this Doing so, fear, conviction. takes us dan- gerous step thought in the direction of control.1 People, college among ought them, students to be protected overeager prosecutorial from the use of *6 machinery implemented. such as was here appearing
Although in the article words certain question may for their shock been used have sense. in the constitutional it is not obscene value, Redrup (87 (1967), 767, 386 769 York US v. New 515); v. Massachu L Ed 2d Memoirs 18 1414, S Ct (86 (1966), 16 L 975, Ed S Ct 413, setts US Billingsley, supra. generally, People 1); See, 2d v. (77 (1957), S United States 354 US Ct Roth v. 1 L Ed 2d Typical Day in “A the Life of J. article, The literary merit. In- not without Jones”, Oswald is professors English testimony of deed, such was the expert upon testify witnesses who were called of defendant. The article tells for and on behalf story graphically.2 and tells it language may appeal
The author’s choice prosecutor, jury, appellate to the tribunal. this objected-to The in common are, however, words use. liberty constitutionally The author is at to use the three- and four-letter which buttocks, words mean coitus, vulva, urine, and excrement to tell the years of J. man Oswald full of who fears Jones, his life is behind. considerably profanity “The fact more * * * convey
used fundamental same thoughts, images, ideas, cannot be basis of a meaningful, workable, constitutional distinction. right The constitutional ideas would communicate 1For an excellent publications discussion area student Abbott, see C. Michael Impressions, The Student Press: Some First Wayne (1969). L Rev 1 2 For curiosity those piqued, whose that became the article cause célebre at Grand Valley College reprinted 23-25. pp State People v. Wasserman J. take itself upon if the State could limited
be unduly how- words, the use certain to prohibit the right to com- they may be, and odious ever offensive The cannot ideas. State constitu- municate those between one tionally [literary work] differentiate thoughts the same another, communicating both of the words delicacy and images, according and images. chosen to those thoughts convey depend exercise of the constitutional does not right v. Bill- on the skill.” euphemistic author’s (1969), 10, 17, 20 Mich ingsley conviction. reverse the I would
APPENDIX Autobiography An Jones: Oswald By James Jones in the Day A Typical Life of *7 A warm, unusually for October. warm wind, was it There was no back- against the pregnant basketball hung like harvest moon full board into the dead cement sharp light grinding shadows orange sky, its of a cloudless street. of an East Side moon, it no opening. There was for an no, not do that would No— J. Oswald Moving his window December, it was cold. was tangled mass of Christmas crowd—a down at the Jones looked humanity moving yet garbage. Although it was not wind-blown like sight Eva did not corner, the already her but Eva was on 7:00 mech- something capitalistic anymore. too him There arouse —too gentlemen, machine. Ladies prostitutes. Eva was a about anical go! He was a machine put Eva in the slot and watch a dime gentlemen, Ladies too, put that needed oil. a tired machine up Only Eva! get juiced by Little in the slot and a dime layers of crud juice him like it used to. her were too turn didn’t Perhaps woman knew Eva too well. no thick and he per- couldn’t, juice up again. anyAt rate Eva really him could longer and he haps really beautiful never had. Eva was no sludge Only they the only could start beautiful women. desired groin. pump in his Joannie of the swollen it was the social worker. Now Joannie silky no, flaming that cunt. Joannie of the breasts. Joannie of the — thighs. In adjective meaty fact was an too weak —Joannie Cut, meaty A, Lean Meat. Choice Red Joannie was all over. Grade stamped stamped. Oswald Jones inspected Government and this rankled him. But not J. sweet, sweet, thy rose, Joan of Arc.” pluck “O let me you you.” “Oswald devil liquid tliy cunt.” me taste “Let . . .” arty. That’s what you’re so “Oh give piece!” ame for Chrissake “Aw “Get me.” your filthy hands off of Stop it!” “Stop it! He had —dammit! at J. Oswald back face leered own of his reflection A windowed up covered a beard which beautiful, with even He was Jones. balding rapidly lips. He was thin disguised his too chin weak his eyes look even his small made in his face etched wrinkles and the mediocre. Mediocre though, just just ugly, wasn’t He worse. — was or did. everything he made love to women who many Ambitious women. had He had Hydro- man. Jones the writer, not J. Oswald Jones J. Oswald electric and them will, on and off at they turn themselves could generators, He didn’t turn turbined crotches. guts with their rip out his of them were and somehow none couldn’t, no man could on, he really beautiful. women hated them sorry Other Funny, for beautiful women. he felt nothing objects, mere sexual they them as were. Men treated for what And now tide their cool. They never afford to lose more. was could Twiggy, Shrimp, and Julie turning against What with the them. way it Why Christie, was not the Anti-Godess? —in the Anti-Godess. long godess No for the anti-hero. overdue. fitfully O’Malley’s bar. He noticed lights above The neon flickered M that was out. sights, queer Lights have seen “The Northern they see ever did queerest But Lebarge marge of Lake night on the Was that McGee.” Sam I cremated disseeted, often he had been a masochist. How Sam McGee again. days regurgitated Ever since the roasted, whole eaten and yet Shakespeare. And he still sucked Willie Bald Wonder—-Wee that craving crap. really for the Yet it never up. had a it Old Sam Maybe made Sam McGee a sadist. Sam knew him. that affected J. Oswald Jones. Sam ran —rather held aces and it wasn’t who Society books, paid for the sat his ass down Sam Sam was show. laughed. fireplace and in front of his suburban Jones, thought Laughed he at J. Oswald the satirist who could Society kept amusement, just Sam. Sam him alive for cremate fools, dwarves, kept medieval monarehs eunuchs and other freaks. years Wonder, shockproof, Bald After Sam was unerema- table, snug within his skin. All the asbestos túne J. Oswald Jones thought been spitting he had been on Sam’s he had boots and here licking them. piss. getting After two beers J. had Oswald Jones He was old. way to, it in sitting He couldn’t hold he used and so there he was watching on the shit can of the universe the ebb and flow of the john bowl, King sitting golden tide Oswald I on his throne. *8 symbols kingdom. Scribbled into the brown walls were the of his shape huge Coats Arms the genitals. disemboweled Even a you it, it, it; motto—‘If can’t drink forget drive or screw it!’ He would have to remember that one. But above all there was the WORD and the WORD was language king- F-U-C-K. The universal of his dom. What motivated men to write that one lone what? rvord? Fuck O’Malley? Life? Country? pie? God? Apple Motherhood? The v. J. really say- all, but the scribes them what were Puck girl door? next in Sam. He wondered if Sam, for the rest were one ing fuck was pleased would be if had written. Sam what the scribes knew Sam boots more. would lick Sam’s once Oswald Jones he did. dimly gray a man in off the cement floor as light reflected The light.” cigarette. the Lord there be lit “And said let stall a the next J. Oswald impressed, top that he could Jones not he felt was lacking. sounded and found it not He looked around his universe Creator. phrase complete, itself. The His universe was good, a world unto good. his own. It too much of little too It was not smacked begin again. He must the Biblical. it milked. Could it Alienation often had been theme —how again, old, it be milked it would have to be. It was but was yet, shopworn. Ño—not not ever. why kill he did not himself. wondered Jones Oswald best, endings always Tragic were that be. finish would What a though? Why, it let Who would write any kind? other there were dusty loins of J. epitaph. Out of everyman write J. Oswald’s Marilyn eult, emerge. Papa had her cult would new Oswald Jones first, But to dead and Bogey one had be too. his, Lennie had so like other What was it on the side? feared J. Did one Jones death. trading quips maggots? get up with the just moldied while out, pinochle on go in, go play worms the worms “The worms your shy goes in who’s ear your one littl not so But worm snout. your eye.” out and comes really If alright. had kicked the can? would be But God That so, Did fatal disease? Rabies? Gout? why? he contact some Holy super Syphilis? maybe he Ghost Or was scratched gang war? terrestial possible ball it, admit but it even that J. Oswald hated to was Billy belonged to the Graham’s with their Halleluiah’s their say you clip joints. my children, my belly. traveling you unto that whatsoever you Billy’s belly imagined do unto He do unto Yes, Billy pull both had one had to have God fat bellies. pearly gates. man mas- But no can serve two make scene at ters, going get prostitute might if one he himself as well extremely paid enigma, popular an an the for his services. Death was enigma. yet way rap. No one had found a to beat death Same humanity generation, hitting old after shit. Generation one wave of shore, way wave, give sucked back to another the shore flinched, never did it? night slowed, The cold air rather than revived his senses. The building up badly. rust was was inside. J. Oswald Jones craved oil He way his to Eva’s—Sam would like that.