*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW COMPANY, ETC., COUNTY HUDSON NEWS AND HUDSON COMPANY, ETC., COUNTY NEWS SUPPLY DEALERS DEFENDANTS-APPELLANTS. Argued 22, 1963 October Decided December *5 Mr. H. Roger McGlynn argued the cause for defendants-
appellants & (Messsr. McGlynn, Stein McGlynn, attorneys; Mr. Julius Kass, of the Bar, New York Mr. counsel, and H. Roger McGlynn, of counsel and on the brief).
Mr. Harold J. Ruvoldt, Prosecutor, Assistant argued cause for plaintiff-respondent Jr., James A. Tumulty, (Mr. Hudson County Prosecutor, Mr. William A. attorney; O’Brien, of counsel).
The opinion of the court was delivered by defendants, J. The Hudson News County Com- Proctor, Co., and Hudson pany News Dealers affiliated County Supply corporations, are in the business of to engaged distributing retailers all newspapers over a magazines types large area in northern New with violat- Jersey. They charged N. J. 2A:115-21 in ing indictments, five each of contained several counts. Pour of the indictments charged the defendants with sales obscene specific sell fifth them with with intent charged possession involved obscene indictments 23 different magazines. The case was tried before a magazines. jury “girlie-type” and defendants were found on counts six of involving guilty provided: “Any 2A :115-2 At the time of the indictment N. J. S. who, just cause, exposes person without utters or to the view of another, expose possesses or with intent to utter or to the view of book, another, any publication, pamphlet, picture obscene or indecent representation any person sell, or or other however made who shall import, print, publish, loan, give away, possess or distribute or with sell, print, publish, loan, give away, design, prepare, intent dis any publication, tribute, book, or offer for sale obscene or indecent pamphlet, picture representation, made, or other however or who any any way same, manner, or in advertises whether recom any against otherwise, gives mendation its use or information how may any had, seen, bought sold, guilty or where of the same of a misdemeanor.” *6 the magazines.2 The Appellate Division affirmed the convic- tions. State Hudson News County Co., v. 78 N. J. Super. 327 Defendants (1963). to this court under Rule appeal 1:2-1 (a).
Defendants first contend
were
to a
that
entitled
they
of
at the
judgment
end of the State’s case on the
acquittal
that
ground
involved could not
constitutionally
be found to
States,
be obscene. In Roth v. United
354 U. S.
476, 77 S. Ct.
1
1304, L. Ed. 2d 1498
the United
(1957),
States
Court held that
is
Supreme
not
obscenity
within
area of
or
Defend
constitutionally protected speech
press.
sense,
ants
in the constitutional
means
obscenity,
argue
“hard-core
define in their brief as:
pornography,”
having
“[C]ommercially
clandestinely
produced
and
material
no
literary
orgies
or
and
of
artistic merit
which sexual activities
men
disguise,
women,
perverted,
portrayed,
and
normal and
are
devoid of
* * *
explicit
through
and crude or coarse illustration
‘hard core’
pornography
instantly recognizable by
all.
absolute
It constitutes
(Emphasis
original)
filth in
the rawest and starkest
sense.”
We are certain that the First Amendment as interpreted by
the United
does not limit this
Supreme
States
Court
State
of material which reaches the nadir of
suppression
described
the defendants.
the cases
Certainly
degradation
do
confirm the defendants’
commentators
or
adopt
several states have limited
definition. Although
suggested
under their statutes to “hard-core”
obscenity
the meaning
re-
no concurrence of opinion
we have found
pornography,3
2
four of
indictments of
convicted under
The defendants were
6;
Mermaid,
Spree,
following magazines:
selling
1 No.
Vol.
Vol.
3;
Adventures,
High, July 1959;
9;
Vol. 1
Sir
Exotic
No.
1 No.
They
Knight,
1,
under the fifth indictment
No. 8.
convicted
Vol.
magazine Ace, August
possessing
to sell the
with intent
578,
County News, Inc.,
3
g., People
9
Y. 2d
216
Richmond
N.
E.
v.
1961) ;
App.
369,
(Ct.
Zeitlin
E. 2d
v.
N.
681
Y. S. 2d
175
N.
Arnebergh,
Rptr. 800,
(Sup.
garding that term. Lockhart and Pro- meaning McClure, fessor in their authoritative article, “Censorship Obscenity: Standards,” Constitutional Developing Minn. L. Rev. 60-61 state that “a (1960), satisfactory definition of the term is not to come Other com- easy by.” mentators have ideas on the expressed varying meaning term, Kalven, e. g., “The of the Law Metaphysics of Obscen- 1, Ct. Rev. ity,” Sup. (1960); Mulroy, “Obscenity, B. A. J. Pornography Censorship,” A. Green, “The Treatment of (1963); Obscenity,” Ey. L. J. 667, 677 (1963).
We have also considered the
advanced in
arguments
the cases and in the literature
is,
may
*7
to,
limited
“hard-core”
but we
constitutionally
pornography,
have concluded that
in the absence of
substantial con
any
term,
currence as to the
of this
its
us
meaning
adoption by
at this time would not increase
or
in the law
clarity
certainty
we decline to do so. We
obscenity,
note
accordingly
two states which have
the “hard-core”
have
adopted
test
reached
results in
opposite
determining
constitutionality
v.
of the
the same book.
suppression
Compare People
1,
Fritch,
119,
Y. 2d
234
Y.
2d
2d
13 N.
S.
192
E.N.
N.
v.
Attorney
with
General
1963),
Tropic
713 (Ct. App.
N.
Cancer,
11,
345 Mass.
184
E. 2d 328
Jud.
(Mass. Sup.
short,
In
the label “hard-core”
is
1962).
pornography
Ct.
or a
in
to be
court
helpful
jury
determining
too vague
is
material
obscene.
whether particular
that under
definition of
any
recognize
We
area,
lie in a
and that
will
“constitu
gray
materials
certain
**
* is often
expression
separated
tionally protected
a dim and uncertain line.” Bantam
obscenity only by
from
Books,
Sullivan,
58, 66,
631, 637,
83 Ct.
372 U. S.
S.
Inc. v.
However, we are of
584, 590
(1963).
opinion
9 L. Ed. 2d
App. 1961),
denied,
312,
(Ct.
cert.
Court community contemporary average person, applying “whether to the standards, of the material taken as a whole the dominant theme S., p. Ct., appeals prurient at interest.” 354 U. at S. p. 1311, 2d, p. 1 L. Ed. at 1509. test, And in he with the defini- discussing quoted approval Code, of the A. L. I. Model Penal 207.10(2) (Tent. tion § Draft No. viz.: 1957), “* * * pre if, whole, thing as a its A obscene considered interest, appeal prurient e., morbid i. a shameful or dominant is to excretion, goes substantially nudity, sex, be if it or interest description representation
yond customary limits of candor * * *” p. 486, Ct., p. S., 354 U. at at such matters p. 1 L. at was revised in minor in the 1962 part This A. L. I. definition Model Penal Draft of the Code. Official Proposed Manual Mr. Enterprises, supra, Subsequently, * ** stated, “obscenity proof Harlan requires Justice offensiveness; and patent (2) two distinct elements: (1) appeal.” p. interest’ “prurient *8 offensive 2d, “patent L. Ed. at 646. term p. 8 p. describes material which can be deemed ness,” ““indecency,” or stan community as affront current its face to offensive on so Ct., at S., at Id., p. p. 370 U. decency. dards of Penal also the Model 2d, 644. He quoted at p. 8 L. ““the studies thoughtful and commented definitions Code twofold con the same Institute reflect Law American of the Ct., at S., 485, 82 S. p. at Id., p. 370 obscenity.” of cept of Mr. opinion the 2d, Although 646. at p. L. Ed. was of the Court) judgment the Harlan (announcing Justice joined Stewart,4 only by Mr. Justice we believe that the re of offensiveness articulated in quirement patent that opinion was nevertheless in Both inherent the which opinion approved the twofold the In concept expressed proposal. in A. L. I. deed, it is the characteristic of which is the basis indecency and if test did society’s objection material, to obscene the elements, not include both worthwhile works in litera many ture, science, art would fall under test of “prurient- the sole cases, In however, interest” most the two elements appeal.5 coalesce, “for which is offensive patently will tend to will interest’ usually carry requisite 'prurient appeal.” also L. Ed. Id., p. 370 U. p. at p. moved at the end of the State’s case for
Defendants that the was re They judgment acquittal. argue judge an material to make determination independent quired evidence, standards, in constitutional be proper applying We jury. fore the issue of to the submitting obscenity agree. the constitutional standards to The trial must judge apply material, in the factual any findings sup specific light evidence, for if in his the material by the ported judgment be then constitutionally cannot remains suppressed, nothing Code, Penal for the consideration. See Model Pro jury’s said, Official Draft 1962 where it is “The posed 251.4(4), § for if it is satis- Court shall dismiss prosecution result; Justice, in Justice Black concurred the Chief Justices Douglas procedural grounds; Brennan and on concurred Justice Clark grounds; on took dissented other and Justices Frankfurter White part no decision. Legislature supplemented indecency our our statutes on obscenity by adding for a definition the word “obscene” sub- opinion stantially language Roth as follows: appears chapter word ‘obscene’ whenever it “The supplement average this act is a shall mean that which to the contemporary community person, applying standards, when con- purpose its as a whole has as dominant theme or sidered an prurient appeal N. interest.” J. 8. 2A:115-1.1. constitutionally must construed to This statute include the ele- patent offensivenoss. ment
257 fied that the material course, is not obscene.” if the Of trial determines that the material judge is not constitutionally pro tected and should be submitted the he jury, should avoid to them his on expressing opinion the issue of obscenity. Smith, v. 32 Compare 501, State N. J. 549 (1960), regarding trial the court’s in function admissibility the determining a Eurther, defendant’s confession. on each appeal appellate court must likewise make an independent determination of whether attacked material is within constitu suppressible standards, tional for the question one of merely fact “but question constitutional of the judgment most sensi and tive delicate kind.” Mr. Justice Harlan concurring Roth, S., Ct., 354 498, U. at 77 supra, at p. S. 1 p. 2d, L. Ed. 1514. See p. at also Manual Enterprises Day, 370 at 82 at L. supra, p. S. 8 p. 647; McClure, Lockhart cit. 114- p. op. supra, at pp.
116 and there cases cited.
We have examined the six involved magazines convictions, defendants’ and we are of the opinion that under the Both-Manual a trial test court could submit the properly of their issue to the jury.6 There was accordingly no error the trial court’s denial of defendants’ motion for on ground. this acquittal
The defendants further contend that were they en titled to judgment of acquittal the end of the State’s on case that State had ground failed to prove beyond a reasonable doubt that defendants had knowledge contents of the magazines involved. In State v. Hudson Co., J. County News 35 N. we held (1961), that N. J. S. 2A:115-2 must construed as it though expressly e., embodied the word i. “knowingly,” that scienter is an element implied offense. statutory Compare Smith v. U. S. Ct. California, Ed. 2d jury properly A find could the dominant themes of perversions exhibitionism, masochism, sexual were such as nymphomania, flagellation, appealed prurient inter- patently offensive, redeeming ests, importance. and had no social *10 that Court held Supreme which the United States in (1959), of for sale obscene the keeping a ordinance city prohibiting by the because as construed was unconstitutional material of scienter. it eliminated the element state court of no at the end there was argue proof Defendants the contents of actually had examined case that they State’s However, may, “A bookseller here involved. the magazines aof and its appeal of the nature book course, be well aware or, sense, cover, in true any having its opened without having Frankfurter concurring book.” Mr. Justice of the knowledge 164, 165, S. 80 S. Ct. in California, supra, Smith L. 2d 217. 224, 225, 4 Ed. the contents the material knowledge
Actual Otherwise, a non to establish scienter. qua is not the sine he his material handles only eyes need close to the bookseller an statute. Mr. Justice under to avoid prosecution Smith, Court, indicated for the speaking in supra, Brennan which a bookseller or circumstances under there bemay that in to material his investigate a may distributor required do 361 U. p. his failure to so. control or explain such 219, 4 212. We believe at p. p. In the course regular exist in the case. present circumstances a in cursory distributed magazines, defendants business would have revealed the nature of their of which spection retailers, three customers of The State produced contents. that on number of occasions defendants, who testified in in that by phone, writing, person had complained they were and asked that deliv objectionable “girlie magazines” nevertheless, deliveries continued. Under stopped; eries be evidence that the defend circumstances, we believe that these was not involved necessary had examined the ants case but that the State could rely prima to establish facie the defendants to require explain on these circumstances actual contents of the lack of knowledge maga their by the American presumption suggested Compare zines. Code, 1962 in the Model Penal Offi Proposed Institute Law viz.: “A who disseminates or person 251.4(2), cial Draft § possesses obscene material course his business is presumed to do so find knowingly recklessly.” We the trial court did not err the defendants’ motion denying on this acquit ground.
The defendants also contend that the trial court erred their motion for denying acquittal at the end of the State’s case on the indictment them with charged possession with intent to sell obscene material. The do defendants N. J. contend that 2A :115-2 is unconstitutional its face on but that its application under the uncon- circumstances was claim They stitutional. their deprived of *11 under the rights First and of Fourteenth Amendments the Federal Constitution procedures the used the in by by police certain confiscating from magazines their warehouse and con- tend that this method of the statute a enforcing constituted prior restraint upon publication.
After
from
having purchased
customers of the defendants
the
in
named
the
magazines
indictments charging defendants
matter,
with the
of obscene
sale
the
obtained a
police
warrant
to
the
search
The
defendants’ warehouse.7
con-
premises
area
sisted of an
about 100 feet
in which
square
thousands of
all
magazines
types
books of
were stacked on
floor
the
to distribution.
The
prior
detectives advised defendants’
a
they
had warrant
to search “for
manager
books of
obscene nature.”
two
They spent
to two and
half hours
the search and
various
conducting
examining
magazines.
made
actual
Seven detectives
the
search and
the
brought
detective,
found
the
to
chief
magazines
who decided
“they
whether
were the
books that we were
type
for
looking
* *
search,
At the conclusion of their
the detectives
seven
of 100
each
confiscated
bundles
of
copies
seven maga-
the
It
zines—all
the defendants had.
should
copies
be noted
these
were not additional
of
copies
pur-
those
of the seven
chased
Each
titles was
in a
police.
named
validity
appeal,
of
warrant
is
the search
not before us on
this
accordingly
question.
we do not consider
R. R. 3:2A-1
Of.
to 10.
and the
charging possession,
indictment
count
separate
trial. Defendants
at the
evidence
bundles were placed
indict-
of this
on
one count
only
convicted
were subsequently
1959 issue of Ace.
ment which named
August
Minnesota,
697,
283 U. S.
in Near v.
Justice Hughes
Chief
1357, 1366
625, 630,
pointed
L. Ed.
713,
(1931),
51 S. Ct.
Amendment guaran
of the Eirst
that the chief purpose
out
There
upon
restraints
publication.
tee
to prevent previous
a state statute
unconstitutional
down as
the Court struck
on the
by injunction
publi
restraint
which permitted
prior
However, it was
that an
suggested
matter.
cation
printed
exist
re
doctrine
with
might
restraint
prior
exception
And the Court
of obscene material.
regulation
to the
gard
restraint of obscene mate
prior
upheld
has subsequently
procedural
under
circumscribed
carefully
safeguards.
rial
Brown,
Books,
77 Ct.
Inc. v.
354 U. S.
S.
Kingsley
Times Film
Corp.
Chicago,
In Marcus v. Search U. S. 81 Property 1708, 6 L. 2d 1127 the S. Ct. Ed. Court held that (1961), of the Missouri for search and seizure obscene procedures case material as that i£lackedthe which applied safeguards due demands to assure nonobscene material the con process S., to which stitutional it is entitled.” 367 U. protection at Ct., 2d, 1716, 6 L. Ed. 81 at at 1136. p. p. p. S. Under 8 Compare Jersey’s recently injunction procedures New enacted relating N. J. to obscene material. S. 2A:115~3.5 to 3.10. court, of tbe statute, police rule a Missouri supplemented to which them search obtained warrants authorized had a and to seize retailers and distributor' of five news premises war- execution found therein. On obscene materials seized the six rants, all were at copies publications was held before A the issue of on hearing places. days after to statute thirteen judge circuit pursuant after filed months the sei- In an over two search. opinion were 280 seized items zure, the held that of the judge be evidence for possible and held as obscene ordered to not be obscene criminal The items found prosecution. to the The Court Supreme were ordered returned owners. of the appellants that the First Amendment holding rights had been : violated stated “ * * unconditionally guaranteed speech and [T]he line between punished regulated, suppressed, speech may legitimately * * illegitimate finely separation legitimate from drawn *. * * * * * Speiser speech for tools calls sensitive Randall, 2 L. Ed. 2d 1472. 357 U. 78 S. Ct. Amendment, that, is not State follows under the Fourteenth It dealing pleases adopt procedures for with ob to free scenity whatever it regard consequences possible here to as involved without * * * They speech. constitutionally protected [the officers
for guide conducting provided no search] were with the exercise step procedure discretion, in the informed because there was no question designed searchingly to focus on before seizure obscenity. Ohafee, generally and Mass See Government Communi consequence suppressed cations, pp. were there 200-218. publications from for over two months 180 the market withheld only publications found obscene. The fact one-third strengthens finally condemned the conclusion that discre seized were allegedly obscene materials cannot be to law tion to seize confided greater opera safeguards without than enforcement officials here sweep broadly so so little Procedures which with discrimina tive. techniques required by obviously deficient in the Due Process tion are prevent of the Fourteenth Amendment erosion of the Clause guarantees.” Id., pp. 731-732, at constitutional pp. 1136, 1716-1717, pp.
The procedures followed by the detectives in the present ease cannot be from distinguished those found constitutionally defective Marcus. Here the detectives exercised the broad- *13 est discretion in executing warrant. were They provided with no to the exercise of guide informed discretion but were left to their individual as to which were judgments magazines obscene. In the short time were at they the premises had little obviously to reflect or The opportunity deliberate. were seized on the hoc magazines basis ad on-the-spot decisions. As a seizures, result of the magazines found to be obscene withheld from the suppressed market for Marcus, three the court approximately years. concluded: “Mass seizure in the fashion of this ease was thus effected without any safeguards protect legitimate expression. judgment The Supreme sustaining
the Missouri Court the condemnation of the 100 publications therefore cannot sustained. We no have occasion to question finding publica reach the of the correctness of the necessary tions are Nor obscene. is it for us to decide ease this power statutory whether Missouri lacks all under its scheme to seize and condemn obscene material. Since a violation of the Fourteenth proceedings, appellants’ Amendment infected the in order to vindicate * * *” rights judgment reversed, Id., constitutional p. 738, p. 1719, pp. 1139, at 6 L. Ed.
We believe that the procedures here im employed an posed unconstitutional prior restraint on defendants’ under the rights First and Fourteenth Amendments, and since this violation of constitutional rights permeated the under the proceedings indictment them with the charging possession material, of obscene the conviction under indictment must be reversed.
Defendants’ final is that an argument erroneous com standard was in the trial munity applied of the case. Over their the trial court admitted objection, testimony lay witnesses to establish that the tending evidence were offensive to standards in Hudson community County. was elicited in following typical testimony response to the court’s witnesses’ requesting lay question opinion in Hudson “morality immorality regarding County”:
263 * * “* way I have I and that lived of life that have watched the very high Jersey City very, County and is moral Hudson a within compared I to other that have visited.”9 standard as areas that addition, jury, objection, In the court the over charged Hudson consider standards of they community should the as testified to the witnesses. County community that term “contemporary Defendants the urge standards,” was introduced in the test obscenity and a standard of not Both,, decency, national contemplates the that hand, the State contends local standard. On other local where the community standard must be that of the was distributed. material Court case which Supreme has been no United States
There
However, Dean Lockhart
this
answers
question.
specifically
have stated:
Professor McClure
and
clearly pre
that,
Supreme Court
is
when the
are confident
“We
against
issue,
will resolve the
the Court
issue
with
sented
application
community
op.
supra,
standards.”
cit.
and local
of state
pp.
at
111-112.
the ideas embodied
In
this view
support
suggest
standards”
“contemporary
origi
in the phrase
community
in United
Learned Hand in his opinion
nated with Judge
D.
Y.
In that
1913).
The Model expressly standards, community clearly impression discuss leaves should be rather applied a standard community national than a state or local one. for See, example, Proposed Official Draft which states in 251.4: § to show: States.” [********] “(4) (d) In any prosecution Evidence: degree Adjudication public acceptance under this Section evidence shall be admissible Obscenity. of the material in the United See also Tentative Draft No. 6 (1957) 207.10(2) (d) § comments thereto.
We believe that the J. Legislature enacting N. 2A:115-2 intended to forbid obscene matter to the fullest ex Amendment, tent under the First made permissible applica ble to the by states Fourteenth Amendment. . Accordingly, standard” to be in en “contemporary community applied forcement of the statute must with the limitations comport on imposed by the State the freedoms guaranteed individual the First Amendment. We are of the opinion that such standard must be uniform necessarily throughout the nation.
The First Amendment for the nation accepts as whole the basic idea that freedom of ais expression necessary in a guarantee democratic society. the con determining *16 stitutional limits of the in obscenity regulation, issue the par ticular case is whether the material published falls within or without that area of expression which it is the purpose of the First Amendment In protect. issue, this resolving the court or must jury that the of recognize freedom balancing other social expression against values has been already in made the of the adoption First Amendment and that this basic a determination cannot be re-evaluated de novo bal of local social interests that area of ancing against constitu tional Emerson, has been established. See protection “Toward a Theory Amendment,”' General of the First Yale J. 877 The First Amendment an (1963). protects area of free which cannot be diminished expression by obscen Therefore, the standard to be under ity regulation. applied alter the such cannot in such a as to regulations operate way short, from In degree locality. protection locality can- area of entitled to constitutional expression protection narrow in not be broad in some of the and country parts area, If a it others. comes within the publication protected cannot be where First Amendment any place suppressed If is effect. States Court guarantee Supreme United were to hold that a entitled to particular publication pro- was court, Amendment, tection under the First we doubt that any federal, could that deny publication state subsequently on the standard protection ground higher community County in its v. Hudson jurisdiction. See State prevailed Co., 75 N. J. 1962). News Ct. Super. (Cty. we hold that the commu
Accordingly, contemporary under standard to our statute is not the stand nity applied individual, individuals, ard of a or local particular group but it is the standard of this ity, contemporary society The court should so instruct the country large. jury. of the above we conclude that reversible error light jury permitted testimony occurred since to consider in Hudson County of the local standards and were instructed could use those standards whether determining were obscene. question Accordingly, for the sale of obscene material must be convictions set aside and defendants accorded new trial. Division is reversed. Appellate De- judgment under the indictment
fendants’ convictions charging posses- sell are reversed. The sion with intent to convictions under the indictments defendants with the sale of charging obscene are vacated the cause is remanded for retrial publications in accordance with this opinion. of these indictments The definition J. (concurring). obscenity is Jacobs, between and the line it draws the obscene and non- imprecise thin and obscure—so thin obviously obscene obscure believe students that the only that many thoughtful workable *17 to what is known is to confine as hard-core approach
367
diffi
term itself
some
presents
Although
pornography.
Mc
Lockhart &
culties,
much lesser in nature. See
are
The
Constitu
Clure,
Obscenity:
Developing
“Censorship
5,
58-68
Standards,”
(1960).
45 Minn. L. Rev.
tional
free
constitutional
solicitude for the
Court’s
Supreme
high
that only
actual holdings suggest
doms of
and its
expression
within the
found obscene
of material is
to be
likely
that type
States,
354
S.
Roth
U.
limits
v. United
contemplated by
Film
Times
1304,
tive the action one of the police they he felt that from a rack because seven magazines no He made to for type people purchase.” not “right dealer “not to put told the and filed no but complaint arrest the jury When for sale.” up more of these any magazines found most three later it years returned its verdict almost obscene; taken to be which the magazines captain.had been undoubtedly had they a result of his activities but as market. Ban from the See precluded long improperly Sullivan, 631, 637, 9 58, 83 S. Ct. v. 372 U. S. tam Books Melko, Books, Inc. v. 584, Bantam 2d 591 (1963); cf. 14 N. J. 524 modified 1953), 25 N. J. 292 Div. Super. (Ch. (1954).
When the officers entered the defendants’ premises (cf.
Jacobs, -Mass.-,
v.
N. E. 2d
Commonwealth
191
873
Dorius, -Mass.-,
Commonwealth v.
191 N. E.
(1963);
2d 781
found thousands of
and other
(1963))
magazines
and one-half hours
for
two
publications. They spent
looking
items which would meet their
one of
concept
obscenity;
below
“moral
them defined
to
was
his
obscenity
and below the moral standards of the
he
people
standards”
available
knew in the
confiscated the
community. They
copies
of seven
hundred of
but
later the
(one
years
each)
again
found all but one of these to be not obscene. Here
jury
material had been
and improperly pre
non-obscene
long
Sullivan,
cluded from
market.
Bantam
See
Books
Warrant,
717,
Marcus v.
367
Search
U. S.
supra;
Property
81 Ct.
During presented psychiatrist to her views as to the com- permitted express An to the munity County.1 objection standards of Hudson 1 training qualification Though psychiatrist, she had as a her testify community may (compare standards be doubted Womack as States, App. 204, 206, D. 294 F. 2d cert. United U. S. C. v. denied, (1961) Ct. L. Ed. 2d with 365 U. S. State, (1962)), Yudkin v. Md. 182 A. 2d and in permitted, was, no as to roam event should she have been she about freely obscenity. through the field of and, as the was overruled standards community use of local objec Also erroneous. holds, clearly that was now majority testimony which the obscenity upon the test of tionable was seemed She was apparently grounded. witness of the State’s abnormality sex any that portrayal to take the position view obscene; seemed to and she necessarily was perversion ab of the race as for propagation use of sex other than any States, supra, Roth v. United normal or perverted. Cf. *19 L. Ed. 1310, 1 p. at p. U. at p. for excite that if sex is used at one she testified point Thus would it becomes itself, say an end then she ment and as follows: testified as And at another she point obscene. of the race and of for the just propagation “When sex isn’t isn’t, is abnor intent then it the I would or the say, species, the defendants mal or On cross-examination perverted.” a statement aby well-recognized psychia to refer to sought her on a certain but point, they trist who differed with views court; a from so of the doing by ruling were prevented Fenchel, v. 21 N. J. 171 was erroneous. See Ruth ruling the trial instructed the members (1956). Ultimately judge her of the could consider and to jury they give weight in the submitted of testimony deciding questions obscenity standards. community the trial the State tendered several witnesses as During men” Hudson County. objection, of Above “average they Reference here testify. were need be made to the permitted He man- testimony only the first them. was the general who believed that he knew what printing company ager feels; County Hudson likes and he “average person” considered that Hudson has a County “very, very moral high with other visited; standard as areas” that he had compared the view that “the word he obscene as connected expressed with these that would harm magazines anything bring spir- to a member any way or of the itually community”; and concluded that he acceptable as “moral standards” the “standards of the community to an County.” Hudson as to when response inquiry sex obscene, its become he indicated that portrayal his that would opinion occur when unrelated to the “marital * ** chamber where God meant it to be” and to “propa of the race as I gation was His beliefs and taught.” private moralities had no clearly pertinency to of the issues in the any States, Roth v. proceeding. United Manual En supra; Cf. terprises Day, S. Ct. Ed. 2d 639 (1962).
Obviously State should not have tendered any so-called men and their should have average been testimony excluded as No incompetent. man can as the qualify average man there is for no such in a being except hypothetical sense. In his trial set the members of charge judge jury adrift by them that telling they were free to such give weight and credit to the standards as community testimony it was “entitled to under the law.” And nowhere in thought was there any effort to remove the effects of the charge erroneous definitions of which had grossly obscenity confused Indeed the confusion was when confounded proceeding. persons the trial told the that most have con judge jury as to the “and use ception meaning you may it *20 life” and his reference to a by dictionary your everyday definition of which included broadly descriptive “foul,” as words such “offensive to “disgusting,” chastity these did not the law. modesty.” Admittedly satisfy See Manual States, Roth v. United v. supra; Enterprises Day, supra. value their freedoms most country our people highly. activities and censorship expect fear
They proceedings will adhere to their traditional strictly concepts State fair trial. Here these concepts departed fair play may convictions not be resulting permitted and the from Orecchio, v. 16 N. J. I State (1954). stand. See to reverse. vote in result.
Jacobs, J., concurs For reversal—Justices Jacobs, Fbancis, Pboctob, Hall, and Haneman—6. Schettino
For affirmance—-None. PLAINTIFF-APPELLANT, JERSEY, THE STATE OF NEW FEFFER, IRVING DEFENDANT-RESPONDENT. Argued 22, 1963Decided December October Prosecutor, Assistant Kreiger, argued Archibald Mr. Thevos, Passaic John G. (Mr. for plaintiff-appellant cause Prosecutor, attorney). County cause for defendant- McGlynn argued E. Roger
Mr. *21 E. Roger Mr. Diamond, attorney; Lawrence (Mr. respondent brief). and on counsel McGlynn,