STATE оf Utah, Plaintiff and Respondent, v. Luana Hall HAIG, Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. EAGLE BOOK, INC., Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. EAGLE BOOK, INC., Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Arthur ADALID, Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Arthur ADALID, Defendant and Appellant.
Nos. 15286, 15288, 15289, 15290 and 15291.
Supreme Court of Utah.
April 12, 1978.
ELLETT, Chief Justice
I too would affirm the order of the trial court.
Steven R. McCaughey, Salt Lake City, for defendants and appellants.
Neil Ayervais, Arthur M. Schwartz, Denver, Colo., for Haig.
Robert B. Hansen, Atty. Gen., Theodore L. Cannon, Asst. Atty. Gen., Salt Lake City, Robert L. Newey, Weber County Atty., Ogden, for plaintiffs and respondents.
ELLETT, Chief Justice:
These five cases are consolidated and the question raised is the constitutionality of
76-10-1201. . . . .
(1) “Material” means anything printed or written or any picture, drawing, photograph, motion picture, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. Material includes undeveloped photographs, molds, printing plates, and other latent representational objects.
(2) “Performance” means any рhysical human bodily activity, whether engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming.
(3) “Distribute” means to transfer possession of materials whether with or without consideration.
(4) “Knowingly” means an awareness, whether actual or constructive, of the character of material or of a performance. A person has constructive knowledge if a reasonable inspection or observation under the circumstances would have disclosed the nature of the subject matter and if a failure to inspect or observe is either for the purpose of avoiding the disclosure or is criminally negligent.
(5) “Exhibit” means to show.
(6) “Nudity” mеans the showing of the human male or female genitals, pubic area, or buttocks, with less than an opaque covering, or the showing of a female breast with less than an opaque covering, or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernably turgid state.
(7) “Sexual conduct” means acts of masturbation, sexual intercourse, or any touching of a person‘s clothed or unclothed genitals, pubic area, buttocks, or, if the person is a female, breast, whether alone or between members of the same or opposite sex or between humans and animals in an аct of apparent or actual sexual stimulation or gratification.
(8) “Sexual excitement” means a condition of human male or female genitals when in a state of sexual stimulation or arousal, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.
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(12) “Contemporary community standards” means those current standards in the vicinage where an offense alleged under this act has occurred, is occurring, or will occur.
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76-10-1203 (1) Any material or performance is pornographic if:
(a) The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex;
(b) It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sado-masochistic abuse, or excretion; and
(c) Taken as a whole it does not have serious literary, artistic, political or scientific value.
(2) In prosecutions under this part, where circumstances of production, presentation, sale, dissemination, distribution, exhibition, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and can justify the conclusion that, in the context in which it is used, the matter has no serious literary, artistic, political, or scientific value.
(3) Neither the prosecution nor the defense shall be required to introduce expert witness testimony as to whether the material or performance is or is not harmful to adults or minors or is or is not pornographic, or as to any element of the definition of pornographic, including contemporary community standards.
Further, in
(1) A person is guilty of distributing pornographic material when he knowingly:
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(c) Distributes or offers to distribute, exhibits or offers to exhibit, any pornographic material to others; or . . .
The information upon which the defendants were charged and convicted is in this language:
Said defendants did unlawfully distribute or offer to distribute, exhibit or offer to exhibit, to others, pornographic material, to-wit: a magazine entitled ‘HOT BITCH MOTHERS, Volume 1, Number 4‘.
The evidence was stipulated to and the cases tried to the court. Included in the stipulation were exhibits consisting of the magazine in question. In finding the defendant guilty as charged, the court stated in its memorandum decision the following:
The Court holds the Statute to be constitutional. The Court, by applying contemporary community standards, finds that the average person would find that Exhibit ‘F’ contains material which would, taken as a whole, appeal to the prurient interest in sex and the material is patently offensive in the depiction of nudity, sexual conduсt and sexual excitement. The material does not have serious literary, artistic, political or scientific value. The magazine in evidence as plaintiff‘s Exhibit ‘F’ constitutes pornographic material within the meaning of the statute and is not entitled to constitutional protection.
The finding of the court is not questioned by the appellants except as to the constitutionality of the statute. We paid our respects to pornography in the case of Salt Lake City v. Piepenberg1 recently decided by this Court. We reaffirm our holding by finding that pictures and articles contained in the magazine in this case are offensive to the sensibilities of any decent person. Those who, by hook or crook, seek to find loopholes in the law so as to permit traffic in such filth have no place in our society and should be relegated to that class of depraved people who enjoy looking at and reading the disgusting material.
As to the constitutionality of the statute, the claim is made by the defendants that it is vague and overly broad. A criminal statute is overbroad when it, in a substantial way, prohibits lawful acts as well as unlawful acts. In the instant case, it is contended that the statute in question impinges upon the freedom of speech. Our
A statute is vague when it fails to inform persons of ordinary intelligence what their conduct must be in order for them to be guilty of a violation thereof.3
Whether or not pornography is within the power of the Supreme Court of the United States is of no great importance to us here. That Court, in the case of Miller v. California4 laid down the requisite standards for determining whether an article or a picture is pornographic. It held:
(a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Our statute thus complies fully with the requirements set out by the high Court. It does not offend against any constitutional provision. It is a valid statute and those who so flagrantly flout it must pay thе penalty for doing so. These defendants have 13 appeals before this Court this month alone that involve pornography convictions.
The judgment is affirmed and the cases are remanded to the district court for the purpose of carrying out the sentences heretofore imposed on each defendant. No costs are awarded.
CROCKETT and HALL, JJ., concur.
MAUGHAN, Justice (concurring in result).
In concurring in the result, I do so for the following reasons. These are set forth in some detail in an attempt to bring something other than an emotional analysis to bear on a recurring problem of constitutional dimensions.
Defendant challenged the constitutionality of
On appeal, defendant contends the statute is unconstitutional on the grounds it is facially overbroad, viz., it sweeps within its ambit protected expression; and that its terms are so vague as to violate due process of law, viz., men of common intelligence must necessarily guess as to its meaning and differ as to its application.
Specifically, defendant contends application of the statute is not confined to dissemination of pornographic materials within a commercial context and therefore exceeds the power of the state to regulate such materials. The definitions of “nudity,” “sexual conduct,” and “sexual excitement” go beyond the description of the type of materiаls, which may be constitutionally proscribed. The term “prurient” is undefined, thus the statute is void for vagueness as a standard by which to judge pornography.
Since Part 12 of Chapter 10 of the Criminal Code, Title 76, regulates a form of expression, its constitutionality is contingent on confining its scope of regulation to the substantive limits set forth in Miller v. California1. Any form of expression regulated by this statute, which does not fall within the legal definition of obscenity, is protected by the
Defendant contends the statute is unconstitutional on its face in that it violates the
In its brief the state misstates the law regarding overbreadth. When we stir in this delicate area, circumspection is demanded, and cursory analysis discarded.
Where First Amendment freedoms are at stake, the Supreme Court has repeatedly emphasized that precision of drafting and clarity of purpose are essential.3 Even though a statute may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth, if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the court.4
The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. [Citations.] The reason for the special rule in First Amendment cases is apparent: an overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected аctivity might be discouraged by the in terrorem effect of the statute. [Citations.] Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.5
The United States Supreme Court has described its role when the issue is whether an ordinance or statute should be invalidated on its face, as follows:
This Court has long recognized that a demonstrably overbroad statute оr ordinance may deter the legitimate exercise of First Amendment rights. Nonetheless, when considering a facial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program. In accommodating these competing interests the Court has held that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, [Citations] and its deterrent effect on legitimate expression is both real and substantial. [Citations.]6
Thus, in an overbreadth analysis, we should first delineate the constitutional bounds of protected and unprotected expression. Then it should be determined whether the challenged statute is facially overbroad. Finally, we should determine whether a limiting construction may be placed on the challenged statute to cure its constitutional infirmity.7
Defendant first contends the crime of distributing pornographic material as set forth in
“‘Distribute’ means to transfer possession of materials whether with or without consideration.”
Thus, defendant contends the statute denounces as a crime, the act of showing or handing to a friend pornographic material within the confines of оne‘s home, or other
In Stanley v. Georgia8 the court observed that although the state had an important interest in the regulation of commercial distribution of obscene material, this interest cannot in every context be insulated from all constitutional protections. The Constitution protects the right to receive information and ideas. Freedom of speech and press necessarily protects the right to receive.
This right to receive information and ideas, regardless of their social worth, [Citations] is fundamental to our free society. . . .9
The individual further has the fundamental right to be free, except in very limited circumstances, from unwanted intrusions into one‘s privacy. The court stated the mere categorization of a film as obscene is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments.
. . . Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one‘s own home. . . .10
Several other arguments were advanced by the State of Georgia in Stanley, which merit review. The state asserted the right to protect the individual‘s mind from the effects of obscenity. The court responded that the right to control the moral content of a pеrson‘s thoughts was wholly inconsistent with the philosophy of the First Amendment.
The state asserted that exposure to obscene materials might lead to deviant sexual behavior or crimes of sexual violence. The court expressed the belief that in the context of private consumption of ideas and information, it would adhere to the view that among free men, the deterrents ordinarily to be applied to prevent crime are education, and punishment for violations of the law. In contrast, the court pointed to public distribution of obscene materials; and observed such distribution is subject to different objections, e. g., there is danger the obscene material might fall into the hands of children; or it might intrude upon the sensibilities, or privacy of the general public.
Finally, the state argued that prohibition of possession of obscene materials was a necessary incident to statutory schemes prohibiting distribution. Here, the court said the individual‘s right to read or observe what he pleases is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws.
In United States v. Reidel11 the court stated:
. . . Whatever the scope of the ‘right to receive’ referred to in Stanley, it is not so broad as to immunize the dealings in which Reidel engaged here—dealings that Roth held unprotected by the First Amendment. . . .
The court explained that Stanley did not recognize a constitutional right in people like Reidel to distribute or sell obscene material. Reidel had no right to do business in obscenity and use the mails in the process.
In United States v. Thirty-Seven Photographs12 it was said:
. . . Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials
It was noticed obscenity was not within the scope of the First Amendment protection. Hence Congress might declare obscenity contraband and prohibit its importation, as it had elected so to do.
The opinion in Miller13 wаs predicated on the theory the States had a legitimate interest in prohibiting dissemination or exhibition of obscene materials when the mode of dissemination carried with it a significant danger of offending the sensibilities of unwilling recipients, or exposure to juveniles. According to the court, it is in this context it defined standards which must be used to identify obscene material; that a State might regulate without infringing on the First Amendment.
The language of Miller is replete with references, signifying the commercial context, within which the State had an interest in regulating the mode of dissemination of obscenity. It was observed that under the holdings that day, (there were five cases) no one would be subject to prosecution for the sale or exposure of obscene materials, unless these materials depicted or described patently offensive “hard core” sexual conduct, specifically defined by the regulating state law, as written or construed. The court expressed satisfaction that the specific prerequisites set forth would provide fair notice to a dealer in such materials that his public and commercial activities might bring prosecution.
The court explained that it could not equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material. The court observed that public portrayal of hard core sexual conduct for its own sake and for the ensuing commercial gain was a different matter. The court commented it did not see the harsh hand of censorship and repression of political liberty lurking in every regulation of commercial exploitation of human interest in sex.
In Paris Adult Theatre I v. Slaton14 we find the State to have had a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as the regulations did not run afoul of specific constitutional prohibitions. It held there was a legitimate state interеst in stemming the tide of commercialized obscenity, even assuming it was feasible to enforce effective safeguards against exposure to juveniles and passersby.
The court continued by explaining that a commercial venture, such as a motion picture house, was not private for the purposes of civil rights litigation. The right of privacy and a place of public accommodation are mutually exclusive. It elaborated by stating that where communication of ideas, protected by the First Amendment, was not involved, or the particular privacy of the home protected by Stanley, or any of the other “areas or zones” of constitutionally protected privacy, the mere fact that, as a consequence, some human utterances or thoughts might be incidentally affected; did not bar the State from acting to protect legitimate state interests.
Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State‘s broad power to regulate commerce and protect the public environment. Commerce in obscene materials is unprotected by any constitutional doctrine of privacy. The court held the States had a legitimate interest in rеgulating commerce in obscene material, and in regulating exhibition of obscene material in places of public accommodation.
In Kaplan v. California15 it was ruled commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation.
The court cited its prior limitations on Stanley as set forth in United States v. Reidel17 and United States v. Thirty-Seven Photographs18 and stated there was no correlative right to transport obscene material in interstate commerce. Thus Stanley does not permit one to go abroad and bring obscene material into the сountry for private purposes. Stanley‘s emphasis was on the freedom of thought and mind in the privacy of the home, but a port of entry is not a traveler‘s home. The court ruled the Constitution did not compel and Congress had not authorized an exception for private use of obscene materials.
Finally in United States v. Orito19 the court rejected the idea that some zone of constitutionally protected privacy followed obscene material when it was moved outside the home area protected by Stanley. The Constitution extends special safeguards to the privacy of the home, but the viewing of obscene films in a commercial theater or transporting such films in common carriers in interstate commerce has no claim to such special consideration.
It is hardly necessary to catalog the myriad activities that may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected Constitutional protection for obscene material outside the home. . .
However, the court in Orito determined there was no constitutionally protected right of privacy involved. The court stated it could not say the Constitution forbade comprehensive federal regulation of interstate transportation of obscene material merely because such transport might be by private carriage or because the material was intended for the private use of the transporter. Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral, or economic nature.
The foregoing review indicates that if the Constitutional power conferred on Congress to regulate foreign and interstate commerce is not involved, the interest of the state in regulating pornography must be balanced with the constitutionally protected interest of the individual as set forth in Stanley. Miller, Paris Adult Theatre I, and Kaplan indicate the state‘s interest prevails when the mode of dissemination of pornographic material is public or within a commercial context. The state has the right to regulate a mode of dissemination where there is a significant danger of offending the sensibilities of unwilling recipients or exposure to juveniles. The state further has the right to regulate commercial exploitation of human interest in sex in local commerce and in all places of public accommodation. The state‘s interest in the regulation of commercial distribution of obscene material does not provide a sufficient basis
Insofar as
Defendant contends the definitions of “nudity,” “sexual conduct,” and “sexual excitement” in subsections (6), (7), (8), respectively in
In Miller v. California20 the court stated state statutes designed to regulate obscene materials must be carefully limited. The court confined the permissible scope of such regulation to works which depict or describe sexual conduct, which must be specifically defined by applicable state law, as written or authoritatively construed. The state offense must be limited tо works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The type of patently offensive conduct which the state could define by law and regulate was described as follows:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
The court elaborated on this concept in Hamling v. United States21 wherein it stated:
Miller, in describing the type of materiаl which might be constitutionally proscribed, [Citations] was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. [Citations.] While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is ‘patently offensive’ within the meaning of the obscenity test set forth in the Miller cases. . . .
In Jenkins v. Georgia22 the court, in reference to the patently offensive element of Miller, stated that nudity alone is not enough to make material legally obscene under the Miller standards.
The definitions in
The definition of nudity is not confined to a lewd exhibition of the genitals or to any type of depiction or description of patently offensive “hard core” sexual conduct. The mere showing of the buttocks or female breast does not comport with the “patently offensive” element of Miller, insofar as this definition is utilized in setting forth the crime of distributing pornographic material in
In Miller v. California, in footnote 6, 413 U.S., 24, 93 S.Ct. [2607,] 2615 the court cited Hawaii and Oregon as examples of state laws directed at depictiоn of defined physical conduct as opposed to expression. However, the court admonished: “In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.”
The definition of “sexual excitement” in
The definition of “sexual conduct” in
Since the challenged statute is readily subject to a narrowing construction without interfering with the legislative function, defendаnt‘s challenge of the statute as unconstitutional on its face must fail.
Finally, defendant contends the failure of the legislature to define the term “prurient” renders the statute void on the ground of vagueness. This term is an integral part of the Miller standards, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed. 419 viz., part (a). The court cites Roth v. United States23 as the source of the prurient interest standard. In Roth, in footnote 20, the initial definitiоn of prurient is derived from Webster‘s New International Dictionary (Unabridged 2d ed., 1949).
‘Prurient’ is defined as ‘. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longing; of desire, curiosity, or propensity, lewd. . . .’
The court in Roth observed that sex and obscenity were not synonymous. Obscene material was explained to be material which dealt with sex in a manner appealing to prurient interest.
The legislature in defining pornographic material adopted the tripartite standards of Miller in
The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex; . . .
. . . All provisions of this code and offenses defined by the laws of this state shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law and general purposes of section 76-1-104. [Emphasis supplied.]
It was unnecessary for the legislature to define the term “prurient,” since the fair import of that term coincides both with the dictionary definition and the constitutional standard for obscenity established by the United States Supreme Court.
The conviction of defendant, Haig, should be affirmed. The material she distributed can be deemed pornographic as a matter of law, even after the statute has been construed to conform with the Miller standards.
WILKINS, J., concurs in the views expressed in the concurring opinion of MAUGHAN, J.
ELLETT
CHIEF JUSTICE