*1 оbligation pay profits obligation incidental pay principal and was to serve an intended inducement payment principal. to accelerate the Accordingly, correctly we hold that the trial court concluded running against any that the of the statute of claim limitations principal for plaintiffs’ profits. barred suit for Yeadon v. Cf. Elevator, Farmers’ Iowa 277 N. W. A. L. R. 725.
Affirmed.
STATE v. LEE MELVIN HOYT.
STATE v. LEE.* JOSEPH S.
174N. W.
February 6, 1970 41177, 41436. Nos. Stacker, Silverstein, Burke, Burke & and Thomas J. Roxlsom appellants. for
Douglas Head, Attorney General, M. Kyle, Richard H. Solici- General, Joseph tor Summers, Corporation P. Counsel, and * Reversed, 399 U. S. 90 Ct. Counsel, re- Corporation Klas, Special Assistant A.
Daniel spondent. justice.
Murphy, the sale of obscene *2 convictions for appeals out of arise These city of Street by employed at 480 Wabasha books clerks have identical, the cases are issues рrincipal Because Paul. St. by disposition this argument and been oral consolidated for court. having three charged sold Hoyt with
Defendant Melvin was Way Man with August 31, 1967, The obscene books on of Joseph Maid, Eve, as Usual. Defendant and and Business Adam January charged having books Lee two obscene with sold Stories 8, 1968, Lady True Love Cruel Lover and Susan’s of viola- Growing Up. allege were in complaints that the sales The tion of Minn. St. 617.241. municipal separately by were tried
Defendants convicted, jury de city and each was Paul without a St. May Hoyt Lee on and defendant fendant on November permitted penalty 15, $100, the maximum 1968. Each was fined for a misdemeanor.1 (1) appeals whether the state issues raised in two by qualified
has the elements proving witnesses burden obscenity specified A Cleland’s in Book Named “John Memoirs 413, General, 86 Attorney U. S. a Woman of Pleasure” v. (2d) 1; (2) to exclude it was error Ct. L. ed. whether contemporary other Lee to establish books offered defendant community standards; under (3) as a matter of law whether York, by Redrup New the tests established subsequent 18 L. decisions citing case, the First Amend United States requires a reversal. ment of United States Constitution single multiple sales as a In each instance the trial court treated the pursuant to Minn. St. 609.035. offense were which defendants convicted was 617.241 under
Section provides as follows: adopted in 1961 and any knowingly exhibit, sell, print, person “It is unlawful distribute, circulate, publish, attempt sell, give away, offer to book, magazine, pamphlet, paper, any obscene to distribute circular, writing, card, advertisement, print, picture, photo- film, play, image, instrument, statue, graph, picture motion drawing, pur- or other article which obscene. ‘Obscene’ for the pose section, average this is defined follows: Whether person, contemporary applying community standards, dominant appeals theme of the material taken as a whole interests.
“Any violating person any provision of this section shall be fined not less than nor more than for each offense.” $20 $100 this, It embody be assumed statute was drafted rules enunciated the United States Court in Roth *3 where obscenity it was held that is not within the area of con- stitutionally protected speech press or free and defines it as fol- (354 489, 1311, 1509): lows U. 1 S. 77 S. Ct. L. ed. [2d] “* * * average pеrson, applying hether to the [W] contem- porary community standards, the dominant theme of the ma- appeals terial prurient taken as whole interest.” From an subject examination of the material is which prosecutions, these we conclude that the convictions should be light affirmed. In law,2 the case the dominant theme of the 2 See, Rosen v. Oman, State 10, (2d) v. 514; 261 Minn. 110 N. W. States, United 29, 161 434, 606; S.U. 16 S. Ct. 40 L. ed. Roth v. United States, 476, 354 1304, (2d) U. S. 1498; 77 S. Ct. 1 Kingsley L. ed. Books Smith v. Brown, Inc. v. 436, 1325, (2d) 354 1469; U. S. 1 77 S. Ct. L. ed. California, 147, 215, 361 205; U. S. 80 S. 4 Ct. L. ed. Manual Enter- prises, Day, 478, Inc. 1432, 370 639; 82 S. Ct. Ohio, 1676, Jacobellis v. (2d) 793; 378 U. S. 84 12 L. ed. A Book Named “John Cleland’s of a Attorney Memoirs Woman of Pleasure” v.
95 average person interest appeals material standards, patently community is contemporary and, applying importance. It redeeming social utterly without offensive any rule under Protection First Amendment is not entitled to or standard. further of these books unnecessary details
It is discuss as it pointless save each is the theme than observe lewd repeated accounts of to relate the characters serves filth. sake of They degrading episodes. deal with filth for the convictions appellants’ assertion answer to bearing value of upon the unsupported by social evidence only standards, canwe acceptance by and their books speaks nothing. say that such add evidence would meaning. all We obscene, lost If it is not the word has for itself. a matter identify is that it obscene it for what it is and hold of law.
Affirmed.
Otis, (dissenting). Justice now
The decision of the States United Redrup obscenity is New govern prosecutions for appears to (2d) 515, 1414, 18 and its York, L. ed. 87 Ct. 386 U. S. only there significant not Redrup because companion cases. be- emphasis but elements is a redirection (2d) Ginzburg 975, 16 1; General, v. United L. 86 S. Ct. ed. 383 U. S. (2d) 31; Redrup v. New States, 383 U. S. (2d) 515; York, Kahm v. 87 S. Ct. (2 Cir.) Cir.) (2d) 78; (5 251 F. Klaw v. Schaffer States 300 F. (S. Y.) Supp. 534; affirming Parmelee v. United Id. D. N. F. Cir.) (2 (2d) 729; F. App. v. Levine D. F. C. United States (2 Cir.) (2d) 156; “Ulysses” F. United States One Book Called (S. Y.) 182; 705, affirming Supp. v. Dennett F. United States Id. D. N. (S. Y.) *4 Cir.) (2d) ley 209 564; D. F. Kenner N. 39 F. States v. United 119; (Mo.) 20; v. Theatre Co. State v. S. W. Adams Vollmar People Muller, Keenan, 519; 96 N. Y. N. A. v. J. (2d) 433, King (Mun. Ct.) 635; City O. Am. R. Ohio Cincinnati 168 N. E. long placed the in a series of the reliance on decision cause of reversals, subsequently. In re- have occurred per curiam which by appel- versing convictions, criminal had been affirmed which Kentucky, judgment ordering and a York and late courts New magazines, had the destruction certain which been affirmеd Arkansas, Redrup. Supreme the in the stated Court respect to with those decisions Ct. 517): 18 L. ed. [2d] ques-
“In
cases
there a claim that the statute in
none of the
was
juveniles.
specific
tion reflected a
limited
concern
state
for
* * *
suggestion
any
upon
In none was there
of an assault
in-
privacy by publication in
dividual
a manner
obtrusive as
so
impossible
unwilling
exposure
make
an
it
individual to avoid
* *
*
to it.
And in none
there evidence
sort of
‘pandering’
significant
Ginzburg
which the Court found
in
United
noted opinion, in succinct curiam but the court concluded that brought whatever constitutional view was on to bear cases it was judgments Only clear not could stand. Mr. Justice Harlan and Mr. Justice Clark dissented. A review of the approved Redrup, in subsequent cases which summarily Redrup, per- reversed on convictions the basis of suades me that however offensive I find books we passing judgment case, cannot, the instant we consistent duty apply with our Constitution construed Court, States sustain these convictions.
Pre-Redrup Decisions years Ten ago, Court reversed the New York Appeals Kingsley Corp. International Pictures Regents, holding deny the state could not picture a license to show the motion “Lady Chatterley’s merely Lover” picture repre- because the adultery sented under certain proper circumstances *5 Day, Enterprises, Inc. v. Thereafter, in Manual behavior. 639, the had (2d) occasion ed. 478, 82 L. S. Ct. ship- prohibiting application of a statute Federаl pass on the through its the mail. Some material observa- ment of obscene govern. The believe recent decisions which tions foreshadowed as magazines on their face not so offensive the were court said decency, community it which standards of to affront current citing indecency, follows equated patent offensiveness or with (May 4, I., Code, Proposed Draft Penal Official A. L. Model States, 1962) 251.4(1), approved Roth had v. United which it § 1498: ed. 77 S. Ct. L. U. whole, predominant if, as a its “Material is obscene considered * * * goes appeal in addition it is to interest and if describing substantially beyond customary limits candor in representing supplied.) (Italics or such matters.” said, proof statute, there be Under Federal the court must patent prurient appeal the ma- of both offensiveness and before terial It that the test be found obscene. went on to indicate decency. addition, a was national standard court made to, decide, reference but did not whether Roth v. United supra, only at and its other decisions aimed hard-core were pornography by noting (370 490, 82 and concluded S. Ct. 648): 8 L. ed. [2d]
“* * * magazines] he most is that that can be said of [T] [the they dismally unpleasant, uncouth, tawdry. is But this ” enough not to make them ‘obscene.’ governing obscenity expanded
The rules in Jacobellis v. were Ohio, 378 U. There S. Ct. moving picture obscene, and the state court held a French to be rejected argument doing, Court reversed. In it so judgment obscenity purely question is a factual that Obscenity said jury’s is all conclusive. a verdict but whiсh has to be decided of constitutional law a matter majority emphasized a that is excluded from court. “ ‘utterly’ only it because without protection constitutional ap- Again, court cited importance.” redeeming social necessity Code, emphasizing the I., Penal proved L. Model A. “goes substantially beyond finding a describing representing such customary limits of candor ap- It 378 U. S. matters.” community “contemporary a law rule plied to state and not local com- national means standards” *6 suggested (378 195, concluding, munity. the court U. S. S. In 802): 1682, 12 L. ed. [2d] “* ** might and local authorities well consider state objectives in this area would be better served their whether preventing objection- specifically at distribution of aimed laws children, totally prohibiting at rather than its material able dissemination.” date, the a Court reversed Florida deci- the same
On Tropic Press, Cancer obscene. held Grove Inc. sion which 577, 1909, Gerstein, 1035, 84 Ct. 378 U. S. re- Press, (Fla. App.) ex versing v. State rel. Gerstein Grove Inc. (2d) 156 So. attempted 1966, clarify the court to summarize and its Ain
previous decisions Book Named “John Cleland’s Memoirs [Fanny Attorney of Pleasure” General, a of Woman Hill] 86 Ct. There the U. S. obscenity— that its Roth definition of under court said “* * * three elements coalesce: it must must be established (a) the the dominant theme of taken that as whole sex; (b) appeals patently interest the material is contemporary community it because affronts offensive standards description representation relating matters; of sexual utterly redeeming (c) and thе material is without social value.” holding held that Massachusetts court had erred court “unqualifiedly that a need not be book worthlessi it can before be (383 held be U. S. rule was The correct deemed obscene.” 6): 978, 16 ed. L. [2d] S. Ct. * * “* proscribed unless it to be is found be cannot A book though redeeming even This so social value. utterly without prurient appeal requisite possess is found to the book patently offensive.” be obscenity by the court’s test of was introduced A note new production, sale, publicity emphasis circumstances 7): ed. 86 Ct. L. [2d] S.U. **«* commercially exploited the book was Evidence that prurient appeal, to the exclusion of all other the sake might utterly values, justify the conclusion book was * * * importance. possible All redeeming uses without social considered, and the be mere risk that must therefore book by panderers per- might exploited because it so book ** * alter the vasively cannot fact treats sexual matters * * redeeming importance social the book will have Ginzburg date, the court decided the same On Ginzburg, 31. In upheld a under the Federal conviction laws be *7 pandering to cause of which it had made of evidence Fanny court reference in the Hill The said that circum case. presentation of material stances of and dissemination claimed importance. be obscene were relevant issue social The (383 41): concluded U. S. S. Ct. [2d] * “* * exploitation Where an of interests in titillation pornography respect lending is to material itself to shown with exploitation through pervasive description such treatment or matters, may support of sexual such evidence determination though the material even obscene other contexts the escape material would such condemnation.” dissenting, Stewart, In attempting Mr. Justice without to define concept pornography, hard-core articulated his with the follow- loo 499, note note U. S.
ing illustration 3) 54, note : L. ed. [2d] * *
“* photographs, still include both and materials Such value, graphically pretense of artistic no picture, with motion including intercourse, various acts of sexual depicting acts of involving partici- sadism, several and sometimes sodomy and They strips orgy-like also include character. in scenes pants grossly depicting similar drawings format in comic-book are, addition, exaggerated fashion. There in an activities photographic booklets, illustra- with sometimes pamphlets and describing manner verbally activities in a tions, such bizarre portrayals character attempt afford whatsoever with no literary All of this pretense to value. no and with or situation * * * embody- conceivably be characterized as cannot material inviolate under the ideas or artistic values ing communication * * Amendment *.” First York, case, companion Mishkin New a hiring York conviction for a New produce possessing them with the obscene books and others depicted upheld. hetero- to sell them was. intent and relations sado-masochism as well as sexual homosexual stating (383 Again, dissented, Mr. Justiсe fetishism. Stewart 67): 518, 86 Ct. [2d] * * “* be, tawdry they those are not However books is, pro- therefore, pornography, publication and their hard-core by the First and Fourteenth Amendments.” tected
The Trials Hoyt, an Paul Police At the trial of officer of St. defendant Department August 31, 1967, he entered book- testified that on a purchased at defendant three store from Wabasha Street Eve, each, Adam and Business paperback entitled books $2.50 Usual, sergeant Way A in the and The Man with Maid. opinion vice unit or not was asked if he had an as to whether ground objected there was books were obscene. Defendant on the *8 proper thereupon no foundation. He was overruled. The officer opinion in his were testified books obscene. The state ground and defendant moved for dismissal on the rested no prima presented. case The facie had been motion was denied and rested. defendant prosecution Lee,
In the of defendant a member of the vice unit Department January 8, of the Paul Police St. testified that on Street, purchased 480' at he from Wabasha defendant two paid $3, Lady books for which he and entitled Susan’s Cruel $2.50 Up. Growing Lover and True Love Stories Because the officer only portions objection books, had read was sustained to testifying opinion his as to they whether or not in his were ob- Thereupon, testimony. scene. state rested without further ground Defendant Lee moved for dismissal on the the state had prove failed to a case. The motion was denied. part case, attempted
As of defendant’s counsel to show con- temporary community pur- standards reference to other books in a chased number of well-known bookstores in the same metro- politan area at about the same time. He offered in evidence Fanny My Hill Crazy and books Life, Wild, entitled Secret Busy Objection by Bodies. the state was sustained. Defendant then rested.
Expert Testimony question finding obscenity by of whether a a jury bearing can sustained without evidence on the elements prescribed by yet the United States has not been determined that court. The state seizes on isolated statements taking position obscenity that the issue of is one a trier Kingsley supporting of the fact decide without evidence. Books, Brown, 1325, 1331, Inc. v. 77 (2d) 1469, 1478, Mr. Justice Brennan a dissent said: jury represents a cross-section of the
“The average special reflecting per- aptitude for the view of the has Jury provides peculiarly trial of therefore son. *9 judging obscenity application standard for competent appraisal definition, an of ac- calls for which, its contemporary average person’s application com- cording of munity standards.” California, dissenting part opinion in
In an Smith v. 215, 228, (2d) 205, 221, Mr. opinion testimony Harlan did not believe that of said Justice he. obligatory obscenity experts but he was of the view that was However, other he advocated could be established means. granting permit trial because the lower court had failed to new contemporary сommunity any evidence of standards. except
A number of state and Federal courts have held that competent in rare cases cannot be established without testimony. leading Maryland A decision this area is Dunn v. Censors, 213 A. The State Bd. Md. lower picture per- court there found a motion was obscene and denied Maryland Appeals to The mission show it. Court of reversed. It held that the Board of had not State Censors sustained its burden proof by merely offering the film in evidence. court ob- enlightening testimony served that without neither the trial appellate qualified court nor the court determine whether Although ap- the material exceeded constitutional standards. pellate picture “tiresome, boring, cheap, court found the often vulgar revolting,” and sometimes it felt that neither it nor the competent average trial court was to determine whether to the person applying contemporary standards appeal prurient dominant theme was an interest. 240 Md. pass picture 213 A. 755. Nor would the court on whether the customary representations exceeded limits of candor its sex, utterly redeeming or whether it was without social im- portance literary or or artistic value.
A Federal approach court took a similar in United States v. (2 Cir.) (2d) 155, Klaw 167, suggesting rely 350 F. the material inappropriate itself was an resort to the doctrine ipsa loquitur. There, of res process the court condemned the community- reactions as jurors their own to use permitting appeal tеstimony does not does or of what without standard approach, average person. an Such interest merely because the ma- permit felt, a conviction would disgusting. distasteful, undesirable, terial was App. 303, Fine, P. City Ariz. of Phoenix v. enjoin Appeals a civil action dismissed Arizona Court only the material obscene where found to be of material the sale the trial posture, the court held In this was in evidence. per- his own based on either judge’s have to be decision would independent research in the field of on his sonal views or sociology. This the court condemned literature, psychology, *10 give parties judicial notice which would a kind of hidden as adversary an opportunity in to examine the source no manner. (Okla. Cr.) in Ramirez v. State
Thе Oklahoma Court only evi- There the 430 P. reached a similar conclusion. obscenity jury prosecution a dence of in a criminal tried to speculate jury a film claimed to be This left the free offensive. obscenity, As United States on the elements the court held. in ipsa loquitur Klaw, supra, rejected a res Oklahoma court jury impressed approach. may The fact that have film proof trash, undesirable, disgusting not establish the did adequate relative to to sustain a evidence conviction. Without contemporary relating im- community to social standards not suffi- there was portance, the court held as a matter of law was re- support The conviction cient evidence to the verdict. (M. Ala.) Rucker suggested in Poulos D. As the court versеd. Supp. 305, 309, disrespect police officers in- it is no 288 F. according to made area decisions be sist that in this sensitive per- expertly trained rigorous standards, employed by more more squad. the vice members sons, fixed than standards by the considered problem was recently, More Giannini, (2d) 563, 574, Cal. in In re of California There, reversing a 446 P. Rptr. Cal. entertainment, presenting publicly nude the court conviction held:
“* * * conclude must the convictions be set aside because We prosecution any community failed to introduce evidence of standards, appealed either that conduct [defendant’s] contemporary interest or offended standards decency.” recognized authority split regarding a the burden proof expert testimony but cоncluded that should have been community
introduced to establish standards. “* * * jurors cannot assume that We themselves neces- sarily express community standards; or reflect we must achieve possible application objective, so far as anof rather than a subjective, community determination of An standards. even- application law, handed evidentiary of the criminal even with * * * guidance sufficiently confusing difficult in an area so obscenity. and intricate as sanction To ex- convictions without pert encourages jury evidence of standards condemn as obscene such personally conduct or material as is distasteful particular juror.” or offensive to the impressed by reasoning am require of cases which a more thoughtful рer- consideration of the elements of than is subjective mitted reliance on the reaction of the factfinder. argued While it in a case tried to court without jury presumption arriving there is a at a decision the judge will have in mind offense, all of the elements of the in this *11 judicial area responsibility particular expertise he has no which effect, to In judicial draw. he is called on take notice to of whether appeals dominant theme of the material to a sex; interest in contemporary whether it affronts com- munity sex; standards utterly relative to and whether it is with- redeeming out my opinion, judge social In jury value. neither nor qualified findings make such deprive of fact so as to a de- fendant of First protection Amendment without more evidence reason, For that reverse itself.1 would than the material review. here for convictions
Comparable Material standards, determining contemporary community I submit exclude from evidence other error for the trial court to it was Although reading currently acceptable public.2 books limiting necessarily in have broad discretion trial court must may properly kind and volume of evidence which be received for comparison, improper purposes I think it to exclude from evi Certainly germane approach dence all it is that the such evidence. alleged and format of the material to be offensive are similar approved by those which the court in books such have been Fanny Hill, which the here refused receive. Counsel permitted argue challenged par be should that the books expressly ap case do not exceed in ticular candor other material by judicial proved openly ordinary bookstores, decision or sold in may community they which not from it be inferred do affront standards. by Maryland Ap-
This was the conclusion reached Court of State, peals in Yudkin v. Md. 182 A. where Tropic Cancer, comparable comparison offered for books erroneously jury, were held to have been excluded. Pennsylvania recently, has More held Publications, v. Dell Inc. Pa. Commonwealth (2d) 840, 847: A. yardsticks contemporary which two
“There judged. compare challenged One is to be standards book have either been held proteс- entitled to the to other books or, in Amendment litigation, of the First absence of tion granted States Court has The United certiorari in a case proof, (N. with the burden of Stein which deals state’s v. Batchelor D. Tex.) Supp. 300 F. 602. 396 U. S. 90 S. Ct. 2 might relevant, example, Portnoy’s Complaint It Stranger Naked Came the were number three number four best Magazine, sellers the area of fiction last fall. Time October *12 substantially contemporary and are standards meet challenged is to consider re- other book. similar community when it was re- ception received from the book leased.” right deluge suggest that defendant has a a
I do not community approval claimed have with other manageable However, by judicial within decision. sanctioned or upon the limits, incumbent factfinder assess it is patently acceptable. what is To reference to that standards arbitrarily precluded end, have should not been defendant offering in evidence material which he claimed was com- from deny op- that I it was error to him parable, and believe that portunity. Redrwp on Determination
Effect Customary Limits Candor concurring opinion Fanny case, his In Hill Mr. Justice 10): Douglas (383 stated L. S. Ct. [2d] literary judges, experts or historians are not or “We competent independent philosophers. are render an not We judgment any book, except as to the worth this or other our * * * capacity private censorship, as is to citizens. If there experts literary the wisdom of such matters as merit and his- significance torical must be evaluаted.” Ohio, supra, Mr. Justice Stewart Jacobellis was of opinion constitutionally laws limited to hard- concurring pornography. opinion, attempting core his without pornography, to define hard-core which he doubted he could do intelligibly, much-quoted he made this observation 804): ed. [2d] * *
“* it, But picture I know it see and the when motion involved in case this is not that.” respect consideration,
With to the five books here for I have personal expressing no opinion hesitation in a their theme, whole, appeals taken dominant as a interest utterly literary redeeming in sex and is without social value. However, they are, I as offensive as submit we cannot on this say substantially they go beyond record of law matter *13 customary description representаtion limits of in candor matters of sex. by Supreme
Under the rule laid down the United States Court Redrup York, 1414, in v. New 386 U. Ct. L. ed. (2d) 515, Supreme subsequent and relying Court cases on Redrup, I am enjoys convinced that the material before us First protection. Amendment
It is struggling clear to those courts are to find a defini tion of pornography hard-core Supreme the United States hopelessly is subject Court longer attempts divided on and no precise to fashion a state definition. The and Federal courts are therefore left to distill they can, their own as rules best based analysis an many of the Supreme decisions which the Court has authority on the reversed of the Redrup case.3
However protracted burdensome be a recitation of the granted material which has protec- now been First Amendment tion, way scope know no better to illustrate the of the Supreme ruling supra. Court’s Redrup York, in New Aday States, United 87 S. Ct.
(2d) 1309, mailing the trial court convictions sustained appendix in In an obscene material interstate commerce. to its opinion graphically the court summarized the material it found (W. United v. West News to be offensive. States Coast Co. D. Mich.) Supp. United 228 F. 171. The Sixth Circuit States Court characterizing (357 affirmed, the material as follows Appeals 858): F. [2d]
“* * * interruption, story quick- moves palliating Without numerous these enterprise So to another. ly from one sexual decided, Redrup Supreme 8, 1967, Court May when Since by Redrup reference to decisions 20 lower court has reversed some appendix. forth an cаses set as out practiced the author runs skill of that even
events leering adjec- supply of dully repeats imagery his fresh tives.” hard thereupon “we know core concluded
The Supreme Court reversed. we see it.” pornography when by Pub- in Corinth obscene Court A book held not 2096, 18 lications, Wesberry, 388 U. S. 87 S. L. Inc. v. highest Georgia (2d) 1310, court of was characterized ed. preparation lengthy for and vivid accounts of devoted to Georgia promiscuity, which the court said were of sexual acts “* * * disgusting. description Further not neces- filthy and sully reported pages sary, not wish to and we do opinions Id. S. E. of this court with it.” Ga. pro held The material which the United States Books, Inc. v. 388 U. S. tected 87 S. Ct. distinguished (2d) 1311, was condemned Fed Cir.) judge, Wyzanski, Jr., eral Id. 358 F. Charles *14 936, as follows: *
“* * Adulteries, seductions, orgies only and are the events importance. only of The contacts include described not sexual sodomy perversions. intercourse, any and other not but There is portray reality cultural serious effort of or social condi- portion popula- tions of even the most or neurotic sordid of the tion.” opinion Supreme ex rel. Court, Kansas State Lon- Quantity Copies Books, 306,
derholm v. of of 416 A 197 Kan. P. 703, (2d) by Supreme Court, reversed the United States A Quantity Copies Kansas, 452, of v. 388 U. S. Books 87 S. Ct. 2104, (2d) 1314, 18 L. ed. described the held obscene reciting, anything else, as capers exclusion of illicit sexual prowess perversion, patently and feats sexual and offensive having appeal prurient. except no The books made no present ideas, story, effort to tell a or advance human knowl-
109 science, literature, understanding art, or edge and the or any redemptive they held lacked feature of social Kansas Nevertheless, they given importance. were First value or Amend- protection. ment significance per particular by reversed curiam
A case Supreme Redrup in reliance on Court is Central United States Sales, Magazine Ltd. United opinions courts, 49. The of the lower L. ed. United States Magazine (D. Copies Md.) Entitled “Exclusive” Cir.) (2d) 633, Supp.
F. and Id. F. describe photographs posed precisely the same nude manner as those Growing Up, in True Love Stories contained one of the two subject prosecution books which was of defendant Lee. picture A motion which was held obscеne in Robert Arthur Management Corp. State, Tenn. S. W. having described ap- Tennessee Court no
peal except interest, any literary, devoid of scientific, value, utterly importance. or artistic without social “* * * patently If this film is public not offensive to the go substantially beyond customary does not limits of candor in dealing sex, with then do not possible we think it to make such * * * just a film. The effect of the film to add to the sexual already filth in the world.” 220 Tenn. 414 S. W. Notwithstanding findings, these decision was reversed Management United States Robert-Arthur Corp. Canale, v. Tennessee ex rel. 389 U. S. 88 S. Ct.
Redrup Applied by Tests Other Courts A reading careful inescapable of the cases cited leads me to the conclusion the books here for consideration cannot be held criminally proved beyond unless the has obscene state a reason- *15 significant doubt one or more of elements to which able Redrup. words, test court made reference in other seems or not the sale or distribution was to be whether directed at 110 it was an obtrusive assault on
juveniles; whether individual pandering. there evidence of privacy; and whether was regard fortified, submit, by My in this views number sought apply Redrup which have other decisions rule. Appeals Court of in Grant The United States v. States Cir.) (2d) 748, using reversed a conviction F. books, sex, mails to sell what it described rotten obsessed with “junk.” they at The court held that were best were of the quality Redrup as those dealt in the same with case. A similar People Stabile, (2d) 905, result was reached v. 58 Misc. City N. Y. where of New York Criminal Cоurt felt obliged complaints Redrup to dismiss criminal in reliance on although “coarse, the court noted that the material before it was puerile, (2d) 912, offensive distasteful.” 58 Misc. N. Y. 824.
I subscribe to the assessment made Court of Pennsylvania in Publications, Commonwealth v. Dell Inc. There, Pa. A. the court observed that may yet Redrup prove significant to be the most of the signify opinions and seems to Court’s final obscenity. abandonment of its futile search for a definition Redrup approached problem by The court observed that publication reference to the circumstances under which might constitutionally court then restricted. The set Redrup the three elements forth described in and found none of present. finding Candy them The lower court’s that the book jurisdictions obscene was reversed. Three other have laid similar Redrup: Maryland stress on The Federal District Court for 4,400 Copies Magazines, Supp. 902; United States v. 276 F. the Ohio Court of Common Pleas in State v. J. L. Marshall News (2d) 435; Michigan Co. Ohio Misc. 232 N. E. and the Wayne Appeals County Doerfler, Prosecutor Mich. App. 428, N. W. 664.4 4 See, also, (M. Ala.) Supp. 305; Poulos Rucker People D. 288 F. Printing App. Rptr. Bonanza Co. 271 Cal. Cal.
ill Eighth Appeals for the in United Court of Circuit The States Lay, Judge Luros opinion Donald an written (2d) 200, attention to areas in has also called the which F. might Redrup prosecutions court, succeed. That in said too, Redrup only that indicated an attitude to ban hard-core felt Although pornography. the material in Luros case de “just trash,” plain there scribed as was said to be insufficient Judge pandering Lay of affirm a con evidence to conviction. opinion by adopting proper ap his cluded what consider the proach 206): of this difficult area the law F. [2d]
“Many disgusted citizens well-intentioned become or offended purveyors place with the of freedom trash their publications juridical in the mail. But within balance is. the governmental basic concern over interference into free channels expression. tight of It is far better there abe rein on authori- suppression, notwithstanding tarian a conflict with some in- customary candor, dividuals’ tastes or limits of than that live we self-censorship a stifled men where must feel apprehension expression unpopular over of an idea or theme. possession Still within our human is the free will in- to make an dependent choice values and to teach our children to do censorship by government same. Paternalistic must continue to only limit that choice in the most extreme of Thus circumstances. general we go view the reluctance of law further in this area.” 5Judge Lay’s strong support Stanley Georgia, views find (2d) 542,
U. S. 89 S. where the United States appears empirical Court noted there be little basis for exposure th'e assertion that lead to deviant sexual citing violence, Cairns, Wishner, behavior crimes Paul Cen- & Sex sorship: Assumptions Anti-Obscenity The Empirical Laws and Evidence, 1009; Jahoda, Impact Minn. Rev. of Literature: A Psychological Assumptions Censorship Discussion of Some in the De- bate, appendix opinion concurring Judge an summarized in (2 Cir.) (2d) 796, Frank in United States v. Roth F.
Summary us comes summary, I not feel the before way do By following by Redrup is forbidden of what test within reasons: being sold the material was no evidence
(a) There was forbidding was involved. such sales juveniles and no statute has connection, it noted that should this In York, Ginsberg New a statute such sustained other deci- 636, 88 S. Ct. restricting expressed concern for a solicitous also it has sions *17 rights purchases Interstate adults. to Amendment First these 1298, City Dallas, 88 Ct. Circuit, 390.U. S. S. Inc. v. 557, Stanley Georgia, 225, 235; 394 S. (2d) v. U. 1306, 20 L. ed. it (2d) has made clear 1243, 22 The court L. ed. 542. 89 Ct. S. upheld and to 617.241 would be a similar Minn. St. that statute prevent purpose to of the law the sustained were conviction juveniles. obscene material sale case, (b) introduced to that In the instant evidence was show throughout displayed dealing prominently sex books with were testimony, principal stock in This the store and were its trade. however, There is no show- was directed at issue of scienter. any ing displays or an assault nor claim that the were obtrusive argued unwilling upon privacy. It an in- individual is not that exposure publi- impossible dividual would find it to avoid question. cations in
(c) Finally, pandering any the record is bare of evidence of States, Ginzburg such as warranted a conviction in United 383 v. 463, 942, (2d) U. 86 S. 16 That case involved ex- S. Ct. L. ed. 31. advertising tensive and solicitation and deliberate studied attempt emphasize sexually provocative aspects “the work, salaciously disposed.” catch order to The court went say: petitioners] proclaimed obscenity; on to its and we “[The taking that cannot conclude the court below erred in their own declaring evaluation at its face value and the book as a ob- whole despite 472, scene 948, other evidence.” 383 U. 86 S. S. Ct.
113 the motives have been (2d) Whatever 16 L. ed. 39. of the books distribution production and manner of support nothing before us litigation, subject there is of this Ginzburg in the condemned finding pandering the kind York, supra, Redrup New v. hold would therefore case. Supreme Court subsequent States decisions of United and the require a reversal. on case based
Appendix following reversed Court decisions have States York, Redrup authority v. Ken Austin lower v. New courts (2d) 1414, 767, tucky, Arkansas, 18 L. ed. 87 S. Ct. 386 U. S. Gent v. 924, Kentucky, 515, [rehearing 87 S. Ct. v. 388 U. S. denied as Austin (2d) 2091, 18 1377]: L. ed. (2d) 2091,
Keney York, 440, 1302. S. 18 ed. New 388 Ct. L. 87 (2d) York, 2091, 18 441, ed. 1303. S. S. Ct. L. Friedman v. 388 U. 87 New (2d) 2092, California, 442, 18 1304. 388 S. Ct. L. ed. Ratner v. U. 87 S. (2d) 2092, York, 1305. New 388 S. S. Ct. Cobert v. U. 87 (2d) York, 2093, 18 Sheperd 1306. Ct. L. ed. v. New S. 87 S. U. (2d) 2093, 18 York, 1308. S. Ct. L. ed. Avansino v. New U. 2095, 18 Aday States, S. Ct. v. United U. Cir.)
reversing F. Co. United States West Coast News Books, Inc. United 388 U. S. 87 S. (1 Cir.)
1311, reversing Id. F. Quantity Copies Kansas,
A of Books v. *18 (2d) 1314, reversing Quantity 18 L. ed. v. A State ex rel. Londerholm Books, (2d) Copies 306, Kan. P. 416 703. 197 1315, Ohio, 2105, 18 (2d) 453, Mazes v. S. L. ed. revers 388 U. 87 S. Ct. (2d) (2d) ing Mazes, 136, State v. St. 218 N. 725. 7 Ohio E. (2d) California, 454, 2107, v. L. ed.
Schackman 388 U. S. 87 S. Ct. 18 1316. States, 233, 19 47, v. S. L. ed.
Potomac News Co. United 389 U. 88 S. Ct. (2d) 46, reversing Containing 19,500 Copies States v. 50 Cartons Magazine (4 Cir.) (2d) “Hellenic F. 635. Entitled Sun” 373 City Hammond, 48, 88 234, 19 (2d)
Conner v. 389 U. S. S. Ct. L. ed. 47. Magazine Sales, 50, Central Ltd. v. United 389 U. 88 S. S. Ct. (2d) Magazine 49, reversing Copies L. ed. United States v. 392 (4 Cir.) (2d) Entitled “Exclusive” F. 633. 373 114 California, 89, (2d) Chance v. 253, 389 S.U. 88 S. Ct. 19 L. ed. 256. Corp. Ohio, I. M. 573, Amusement 690, 389 U. S. 88 S. Ct. L. ed. (2d) 776, reversing Amusements, App. (2d) State v. I. & M. Inc. 10 Ohio
153, (2d) 226 N. E. 567. Management Corp. Robert-Arthur Canale, v. Tennessee ex rel. 578, U. 691, S. (2d) 777, reversing 19 L. ed. Robert Arthur Management Corp. State, 101, (2d) 220 Tenn. 414 S. W. 638. City Pensacola, Felton v. 340, (2d) S. U. Ct. (Fla. reversing App.) (2d) Id. 200 So. 842. Henry Louisiana, 88 S. reversing Henry, 682,198 State v. La. So. York, Carlos v. New S.U. 90 Ct. 24 L.