*1 petition to transfer should be denied. Landis, J., concurs in this dissent. Reported in 170 N. 2d 371. E.
Note. —
State of Indiana v. Kuebel. 29,920. January 31, [No. Filed 1961.] *2 Steers, Attorney General, Phillip Bayt, Edwin K. L. Prosecuting Attorney, Deputy Tranberg, and John W. Prosecuting Attorney, Circuit, appel- 19th Judicial lant. *3 Symmes,
Charles W. Symmes George Frank A. and Henry, Indianapolis, A. all of appellee.
Bobbitt, C. J. The prosecutes State of Indiana appeal judgment from a Court, of the Marion Criminal One, sustaining Division appellee’s quash motion to an charging amended affidavit possession him with the and sale of obscene 1905,- matters in violation of Acts 169, ch. §462, by p. amended Acts §1, ch. 241, being §10-2803, Supp. Burns’ I960- Cum. assigned sole error is, here “That the Court sustaining erred Appellee’s Quash Motion to Amended Affidavit.”1 1. Count I of affidavit, omitting the amended parts, formal as follows: Ray Joseph County “[T]hat Kuebel late of State, said and 17, 1959, County or about June did then and there sale the at and in the aforesaid, and State unlawfully possession have of and offered for following, Scene, J, to-wit: Vol. August, No. being obscene, lewd, Issue same an indecent or lascivious
book, pamphlet, paper, drawing, picture, photograph, said alleges (1) quash the facts stated that The motion to offense; (2) public count do not constitute in each suffi- the offense with that each does not state count duplici- certainty; (3) are that the facts stated cient prosecu- tous, (4) under which and that the statute it that tion commenced is unconstitutional and State Con- provisions Federal certain violates motion, stitutions, but specifically set out as are opinion by repeating them need not we burden this here. judgment present
In our considered case cannot therefore, grounds we, be concluded other and directly to proceed a consideration of the constitutional regard questions presented, without to the others raised quash. the motion to Appellant First: if the statute is con- concedes require knowledge strued the accused have book, article, etc., pamphlet, the nature of men- statute, constitutional, tioned in the then it would be im- but if it “is to eliminate and construed liability”3 pose the constitutional then violates guarantee speech.4 provisions freedom of question The determinative here then is: Does swpra) statute (§10-2803, eliminate all elements scienter?
Scene,
4, August,
Issue, being
obscene, lewd,
Vol. No.
too
indecent and lascivious to
records of this
be set out herein
to encumber the
Court, contrary
to the form of the statute in such
against
provided,
peace
dignity
cases made and
State
of Indiana.”
III,
II,
IV,
I, except
Counts
V and VI
same as Count
*4
pamphlet
charged.
different book
St.,
2. See:
Gross Inc. Tax Div. et al.
Pearson
Constr. Co.
(1957),
602, 607,
236 Ind.
At 437 of 103 this court further said: “Here, seen, gravamen have we writing is not the offence lewd obscene depositing letter, post-office.” but the of it in the question there for The decision was: Did or did defendant-appellant deposit post- the letter in the quoted The statement office? above and relied, appellant was made in connection with a con- of the admission into of other letters evidence sideration signature bearing Thomas, purpose for the showing “knowingly” placed the letter he charged post-office as affidavit. imposition question scienter or the of strict
273
liability
case, and the
was not
in the Thomas
raised
statement
therefrom and
reference is made
to- which
by appellant,
dicta
as its
must be
insofar
considered
application
question presently
con-
before us is
controlling
Therefore,
cerned.
here.
case is
legislative
here
intent must control our decision
determining
ascertained,
if it can be
this it
and in
statutory
proper
history
to consider the
Bank
enactment
Merchants Nat.
involved.
658, 666,
Tp. (1916),
Delaware
185 Ind.
School
Section and the statute involved in (Acts case, 1905, 169, 584, p. Thomas ch. §463, being Supp.), origi- §10-2804, Burns’ 1960 were Cum. nally 1881, respectively. R. §1997, S. §1996
Subsequent to the decision in the Thomas case in 1885, Legislature, session, the 1905 re-enacted verbatim, parts in the relevant, here 1881, §1997, R. S. supra, 169, 1905, ch. except Acts §463 the word “knowingly” following the word “whoever” in the first line of the added, section expressly providing thus for scienter. 1996, 1881, supra,
Section R. was, S. at time, the same verbatim, parts re-enacted relevant, here as §462 169, ch. However, Acts 1905. in the re-enactment supra, of §1998, Legisla the 1905 session of the ture did not add “knowingly” the word as it did in the supra. re-enactment of §1997, This action seems to us to indicate a unequivocal clear and intention of Legislature impose in §10-2803, supra, knowledge without element of scienter or part person charged. State ex rel. Booth v. Jewelry Enterprises (1942), Beck 276, 282, 220 Ind. 41 876; N. E. 2d 141 A. L. R. United States v. Atchi son, (1911), T. & S. F. R. Co. 220 U. S. 55 L. Ed. 362; Authority
31 River v. Federal Ct. Grand Dam Cir., Power Comn. 246 F. 2d many There are instances in our criminal code where crime, scienter is made an element of the Legislature specific appropri- and the done so in has language ate illustrated each of the men- statutes tioned in footnote 5. arising
The State also relies certain cases under *6 intoxicating liquor per- a former efforts to law5 in its requirement of suade us to read into the statute here a knowledge. However, only cases involved one these controlling knowledge question and it neither is persuasive in the here nor because of difference questions involved. in Smith
Paraphrasing Brennan the words of Justice 205, 147, 152, 2d 4 L. Ed. (1959), 361 U. California specific 215, constitu 211, there is no 80 S. Ct. against imposition of strict inhibition tional statutes, penal food liability such as in certain guarantees drug legislation, the constitutional “but and press stand in of the freedom requirement the book imposing on way a similar seller.” language simple plain “who-
The statute states any or offers to ... or in manner ever sells ... sell exhibits, possession, without intent has in his with or may readily (Emphasis supplied.) . . .” As to sell. observed, requirement expressly no for scienter is be statute, contrary provided in the but ele- eliminated, expressly of intent and in our ment Legislature judgment had to make if the intended spe- have an element of the crime would Claims; 10-2102, Forgery; 10-2101, Burns’ False Burns’ 5. 10-3017, Goods; 10-3018, Receiving Receiv- Stolen Burns’ Burns’ ing from Another State. Goods Stolen 48, ch. §4. Acts cifically swpra, done so at time it amended §1997, manner above noted. recognize Legislature
While we that an act of the will upheld reasonably possible, if yet, this does not rule require or authorize the court to amend a judicial statute decree order sustain validity. its Court of recently the United States
held in Smith v. California, supra (1959), 361 U. S. 4 L. Ed. 2d city S. Ct. that a ordinance Angeles, of Los California, provided, “It shall be any person unlawful for to have in _ possession any his writing, obscene or indecent book, pamphlet, picture, photograph, drawing, figure, wire picture motion film, phonograph recording, recording transcription any kind in following places: (Here naming them.),” included no element imposed scienter a strict and absolute criminal person charged. on the At page 211, 2d, L. Ed. the court said: “By dispensing any requirement of knowl- edge of the contents of part the book on the *7 seller, the ordinance impose tends to limi- severe public’s
tation on the constitutionally access to pro- tected matter. For if the criminally bookseller is knowledge liable without contents, of the and the purpose, ordinance fulfills its he will tend to re- inspected; books he sells to those he has imposed and thus the State will have a restriction upon the constitutionally protected distribution of as well obscene literature.” question The offense defined in the statute here solely possession of the sale consists of certain ar upon judicial investigation ticles found to be obscene, lewd, etc., as was the case in Smith v. supra. California, judgment statutory In our here, definition of the criminal offense as was true in case, the Smith includes no element of “scienter— and, there, of the book” as did the ordinance imposes here statute a strict or criminal absolute liability. herein, by
Second: Does the impo- statute involved its sition of a strict and absolute violate criminal any provision of the Constitution of the United States Indiana, by appellee?- or the Constitution of as asserted Hughes Chief Justice declared for United States in Near rel. Court v. Minnesota ex Olson 697, 707, 283 U. Ed. 75 L. S. Ct. as follows: longer open “It no is liberty to doubt that the press speech liberty is within the safe guarded by process the due clause 14th Amendment from invasion ac state impossible tion. It was found to conclude personal that was liberty this essential of the citizen unprotected by general left guaranty rig-hts person property.”
fundamental question subject The Act here in to the same in Angeles ordinance, firmities was the Los which was California, supra, held in v. Smith to be in violation of process the due clause of the Fourteenth Amendment to the Constitution the United States. Angeles
If the Los ordinance is invalid because it seriously to tends restrict the freedom of and of press, impelled we are to conclude that supra, also
§10-2803, violates of the Four §1 teenth Amendment to the Constitution of the for the same reasons. See: Smith United California, supra; People, Engel (1960), etc. v. 7 N. Y. 1002, 166 E. 2d 2d N. provides:
Article Constitution §9, Indiana *8 restraining in- the free passed, law shall be “No restricting thought opinion, or terchange of and freely, print, right write, speak, right, of the abuse subject but for whatever: responsible.” every person shall police of may proper exercise in the The State mat of obscene power prevent and distribution the sale attempted a manner in ter, but when right speech free of tends restrict which guar right free expression, then weighed swpra,, must be §9, anteed Art. safety public requirements against
balance by the restriction are which asserted and welfare sought. applied to the situation with which this test is
When weigh confronted, in favor the scales we are now expression. right speech and free of free imposition of liability by a strict the statute restricting interchange here has the effect of the free thought opinion by requiring and a bookseller to peril at his the sale act and distribution of books periodicals, and whether obscene or not obscene. Under circumstances the bookseller restrict will periodicals which, limit the books stocked to those inspection, entirely he after found to be has free containing might any possibility of matter which cause having summary merely for arrest such items his type censorship pre- This would result in his store. venting many the sale distribution books and might finally periodicals a court which determine not imposing censorship exceeding obscene, thereby to be prescribed by which limits be- the boundaries police power operate. yond cannot here, making require without some the statute Since scienter, i.e., contents ment *9 books, periodicals, etc., pamphlets, pos for the appellee charged, session which of here is makes sell, a any person it criminal offense for offer to sell, to possession, or par in his have obscene matters ticularly statute, the described in tends restrict right impose inhibit the of free a restraint interchange upon thought opinion, the in of it is provisions valid under the of Art. of the Constitu §9, Indiana, supra. tion of suggested It
Third: the is is entire not section unconstitutional because of the feature prohibited acts, since certain such the as manufacture printing or literature, implies of necessarily obscene a knowledge of the contents. single may partially
While statute be valid and partially invalid, a determination of whether or not ultimately it is severable rests judicial legislative determination of intent. the purpose clearly pre- the statute here was the vent dissemination of or media literature other corrupt community by which tend to the morals of the prohibiting sale, possession, pro- the advertisement or obscene, manufacturing otherwise, duction or lewd, indecent, books, pamphlets, or other lascivious or articles indecent or immoral use. determining legislative may prop
In the intent we object Legislature erly sought consider the which the accomplish, severability but test of is Legislature whether would have passed presented the statute had been without Statutory the invalid features. Sutherland Construc ed., p. tion, 3d §2404, judgment supra, part our §10-2803,
In invalid inducing enactment, pro- cause for its was the other prohibit which acts manufacture visions things, and distribution printing sale only being sought prohibited, incidental to be purpose. main to and aid purpose Act principal judgment In our by the Legislature defeated intent of the and the have part it which we of that elimination therefore, and, the entire to be declared invalid amended, section, 169 of Acts of ch. §462 supra, Supp., is in being Cum. Burns’ 1960 §10-2803, changing To hold otherwise would and void. valid Only may legislative not do. This the court intent. Prosecuting Legislature Fairchild, can do that. 480, 494, Schanke, Ind. Atty., al. etc. et *10 2d 159. 113 N. E. foregoing judgment of the trial
For the reasons affirmed. court must be
Judgment affirmed. Jackson, JJ., concur. Landis and Achor, J., opinion. with dissents opinion. Arterburn, J., dissents DISSENTING OPINION charged in the Appellee State’s was Achor, J. possession offer- counts of affidavit six amended magazines allegedly under ing obscene certain sale (1960 Supp.) Repl. Burns’ 1956 of §10-2803, the terms p. The relevant [being ch. §1, 241.] Acts follows: are as parts of this statute inor ... or offers to sell ... sells “Whoever possession, with has in his exhibits or manner lewd, sell, . . indecent . intent or without lascivious drawing, paper, litho- book, pamphlet, photo- daguerreotype, engraving, picture, graph, instrument, cast, model, picture, stereoscopic graph, use, . immoral . . shall of indecent or article than one fined not less than be added [20] days thousand imprisonment nor more dollars twenty than one for not less than [$1,000], dollars year; [$20] . . .” to which nor more twenty may presented As the court, case is parties this both agree question the sole upon to be decided this appeal law, is whether quoted, violates above speech freedom of guaran- press and the freedom of Constitution, tees of the Indiana Art. Sec. 9 and the Constitution, United question States Amend. 1. The is presented solely upon the issue as to whether or not quoted altogether statute above eliminates the ele- ment of scienter or from the offense. There- fore, solely upon determination of this case rests limited issue.
Appellee asserts the recent case of Smith v. Cali- 147, 152, 154, controlling 361 U. S. fornia presented. issue here In that case the United Court held that the California ordi- nance which was by impos- construed the state court as ing possession for the or sale of obscene material imposed was unconstitutional because it an guaranteed unreasonable burden by on free the Fourteenth Amendment of the Constitution of the United States. legal basis which the decision in the Smith
case is made to rest Brennan, stated Justice *11 follows: principles guide “These us to our decision here. held speech We have not writings obscene protected by guarantees constitutional press. freedom of and the Roth v. United
States, 354 U. S. 1 L. ed. 2d Ct. 1304. The question, ordinance sure, here to be only imposes criminal sanctions on a bookseller if in fact there is to be shop found in his an ob- holding not rec- Roth does But our scene book. power the dissemina- ognize any to restrict state obscene; think we are not tion of books which this ordinance’s tend liability would feature effect, by penalizing seriously sellers, book- to have slightest though they no- had not even they sold. books of the character of the tice analogize this strict below appellee and the court penal penal ordinance familiar forms knowl- dispense element statutes (Our charged, . . . part person edge on italics.) pass definitely not and most do need “We requisite today to a sort of mental element on what constitutionally permissible prosecution aof stock; carrying an book in for obscene bookseller its contents honest mistake as whether whether excuse; obscenity an needed be in fact constituted might under which be circumstances there whether might require constitutionally that a the State further, might put investigate bookseller not, why and any explaining he did the burden him might be. Doubtless what such circumstances form applicable obscenity statute of criminal tendency to some self- induce bookseller will inhibitory effect on censorship and have some obscene, but we con- material not dissemination goes to the extent today only one which sider the crime.” eliminating all mental elements from italics.) (Our in this case is whether the Indiana the issue Thus construed, must be as was the Cali- statute [§10-2803] ordinance, all to eliminate mental elements from fornia words, deny other does the statute In crime. establishing opportunity of a reasonable accused justification prohibited excuse, for the act? defense, denied the statute must be void opportunity is If such However, case. if stated in the Smith the reasons statute does not fall is afforded the opportunity decision of the United prohibition of the within cited. above Court *12 282 determining question, guided by
In we are cer- propositions tain well established of law and rules of statutory construction. Supreme deciding
One: The United Court, States in by given the Smith case was bound the construction by the ordinance the California courts for it is funda Supreme mental the United States is Court by adopted bound the construction of a state statute duty resort, the state court of last and it is then the Supreme of the United States Court determine applied, repugnant act, whether the as construed and is to the restrictions of the federal constitution. Ward Krinsky (1921), Sup. & Gow v. 503, 259 U. S. 42 Ct. 529, 66 L. Ed. words, 1033. In other state courts are judges placed upon the exclusive of the construction sitting diversity their own law. Federal courts in cases interpretations apply look to the state courts ing particular case, state law to a rather than looking state courts to federal courts. This is not merely comity respect a matter of for the state courts, but federal courts are bound to do so since holding Supreme the United States R. Court’s Erie Thompkins (1938), Sup. Co. 304 U. S. 58 Ct. v. only 817, 82 L. Ed. concern of the United Supreme States Court to insure that the state court’s interpretation does not run counter to the United States Constitution. The United Court States recently principle Speiser reiterated this basic 513, 523, Randall 357 U. n. L. Ed. 2d Sup. 1460, 1471, 1332, 1340, n. Ct. n. when they stated: objection sug- A more "... fundamental to the gestion, course, is that it does violence to the principle
basic constitutional that the construction responsibility of state laws is the exclusive (Our italics.) state courts.” City of Los an ordinance In case the Smith materials Angeles possession of prohibiting the obscene eliminating courts as by the construed California adopted this Supreme Court The United scienter. page construc- construction, at 149 noted *13 to necessary courts in for the California tion order was supplementary permissible uphold the ordinance as legislation. municipal judge upon to is called
Two: court Whenever this adopt statute, an constitutionality the the of a court will reasonably favoring constitutionality, interpretation if wording meaning possible the statute. within the to power the In all instances where a court exercises statute, the the invalidate a statute with the conflict ex- be We should be constitution must irreconcilable. enactments, legislative tremely reluctant to down strike long (as especially acquiescence there has been where statute) an is the case this unconstitutional legislature, if not intention should be attributed reasonably duty avoidable. It to avoid a construc- is our tion of the statute which render it unconstitu- would I. E. tional if that result 5 L. Constitu- can be avoided. E., Statutes, Law, (1958) ; L. tional 26 I. §175 §38 (1900). nothing is
Three: There within the statute with keep which are here it we concerned [§10-2803] falling general from within the rule that where knowl- edge specifically intent not or made element of is an proved offense and is that the committed accused presumed charged, act it will be unlawful knowledge act done with a criminal or intent. rebuttable, presumption is or rebuttal burden Law, being the accused. 22 J. Criminal C. §34 knowledge (1961). lack of or criminal In such instances burden, defense, intent available an element is however, being go on the defendant forward with authority such evidence. There is an abundance of supported by the decisions court the United holding.1 Court for a Illustrative such Bridgewater is the case of State v. 171 Ind. 85 N. E. which a statute made involved which gambling quote a visitation of house crime. We length light at from case it bears on our reasoning: statute, “In defining offense, case a public thereof, makes an essential element State, prosecution then the thereunder, in a must prove knowledge. aver and if the the Of course defendant innocently in this case visited gambling-house knowledge controversy, having any without notice, constructive, either actual or character, of its not, then he would within meaning spirit law, of he guilty of the of- charged, fense with have would plea right, guilty, under a to set up such as a prosecution. to the It will be facts defense *14 statute, positive observed the terms, in de- by any person gambling-house a clares visit to a to penal offense, a any visit, prima be and as apparently, law, or is a violation of the a
facie
legitimate
making
by
it
excuse for
must be shown
liquor
intoxicating
act,
legislature
1. Under the 1925
the
made
offense,
any person
purchase,
receive,
for
it an
“. . .
to
manufac-
ture,
transport,
ship, possess, sell, barter, exchange, give away,
furnish,
handle,
dispose
any intoxicating
or otherwise
or
except
by
liquor,
(Acts 1925,
48,
as authorized
act.
. . .”
ch.
p.
§4.)
“knowingly,”
thereto,
The word
or
similar
words
are omitted.
However,
(1931),
669, 673,
in
202
Molnar v. State
Ind.
177 N. E.
merely
presumption,
this court held that
this statute
raised a
specific
proven.
one of the
acts
if
The court stated:
enumerated
the
be
statute
“Appellant
provision
failed to
has
indicate the
process
state
which he
in our
law’
Constitution
construes as a ‘due
clause,
any
provision
Legislature
inhibiting
or
other
the
passing
prima
phrase challenged by
from
evidence
him.
facie
Legislature may
proof
prima
a
While the
declare
fact
facie
yet
fact,
probative
of the existence
another
evidence
of the
sible
force
weight
by
latter
fact would have no
when
rebutted
admis-
Bailey
evidence.
v. State of Alabama
219
U. S.
219, 234,
Sup.
Ct.
facts justifications must them. . . . Excuses and show come in pre- defense; by way of there is no such requires the sumption of existence as State their ” allege they not exist.’ do stated, question, above statute For reasons liability imposing supra, strict can be construed as creating merely act, upon for his but the accused proven; guilt prohibited is presumption if the act however, dispelled may, presumption be defense, excuse intent proof of lack of or by the justification United As stated act. Speiser Randall the case of Court in supra, 524: 357 U. S. course, going the burden of with “. . . Of forward stages at some of a criminal trial
the evidence may placed defendant, only after the the but enough just ‘proved has to make State required repel to be what has been defendant ” explanation, . . .’ proved with excuse construed, application of is consistent So §10-2803 have not been con- other similar statutes which imposing placed upon but have strued providing an excuse or defendant burden of his act. This construction of the law explanation for accomplish obviously pur- intended serve would *15 enactment, prohibit pander- to the its which is pose of designed ing sex” materials which of “sick designs illicit sexual desires and evil and stimulate passions others; by construing act, so the it will constitutionality withstand the test con- herein sidered.
However, support argument of its that §10-2803 ground imposes unconstitutional on the strict liability offense, criminal appellee for the discusses history 10-2804, and the case of §§10-2803 (1885), 419, 433, 434, Thomas v. State 103 Ind. which knowledge contained some dicta to the effect that was necessary element of the latter offense [§10-2804]. Appellee originally cites the fact that neither §§10-2803, possession with deals ma obscene sale terials, mailing nor §10-2804, which deals materials, knowledge specific such made or scienter a respective element Appellee further offenses. cites the fact that after the decision in the Thomas case, change, was re-enacted without whereas §10-2803 by was amended the addition of the word §10-2804 “knowingly.” action, appellee On the basis of this as unequivocal serts that there is “a clear and intention legislature impose in §10-2803 knowledge without element of scienter on the part person charged.”
However, conclusion appellee drawn the decision in case, the Thomas and the subse- legislation quent necessary. is not case, In the Thomas charge appellant was “that knowingly, etc., placed a lewd and post obscene letter (Our office.” italics.) Consistent with charge, the form of the court, discussing statute, knowledge assumed that necessary awas element of the offense and that proving knowledge burden was State.2 actually 2. The issue decided in Thomas v. State 419, 434, that, If, guilty
Ind. “. . . . . . is an *16 legislature’s Therefore, re-enactment of the §10-2803 by verbatim, the addi- of §10-2804, and the amendment reasonably con- “knowingly,” be can of the word tion leg- legislative the conveying intention that strued as as adopted the construction §10-2804, islature legislature case, that the Thomas but considered in the con- generally accepted rule should that the intended dis- hereinbefore as apply to §10-2803, tinue to as enu- upon proof the facts cussed; specifically, that knowledge will in criminal merated §10-2803, knowledge or criminal presumed, lack of such but the offense, is available intent, of the an element defense. defendant as a given study to be law
I am needs aware question possible infirmaties because of other in However, my opin- in case. not considered as constitu- be construed and should ion the law can single presented. tional, here related to the issue OPINION DISSENTING charged in defendant was J. The Arterburn, Court, possession Division Marion Criminal obscene, printed and indecent lewd certain and sale photographs under Burns’ §10-2803, matter quash a motion to trial court sustained Supp. The Cum. ground that the statute was uncon- affidavit knowledge require it did not because stitutional printed matter contents of nature selling possessing such obscene by the one scienter thereupon discharged by the appellee was matter. appeal. prosecutes this of Indiana court, and the State offence, proper admit in evi- it was . . ingredient dence cuting prose- letters, written the accused to similar other specifically proof witness, as to the letter charge. described question The statute is words does not use the defining “knowingly” “wilfully” or similar words in thereby imposes “strict It is it offense. contended liability.”1
The decision of trial court was based recent case of Smith 361 U. S. California right 80 S. 4 Ed. 2d Ct. L. 205. In that case the legislate obscenity state in the area was reaffirmed, legislation but held that cannot requirement guilt eleminate the of a on the scienter *17 part charged alleged of the one with the crime. Supreme interpreted California had statute Court a being to similar ours in Indiana as one of liabili strict ty, obviating necessity showing any the guilty of knowl edge. legislation, Such the United States Court liability justified 1. ground Strict has is, been on the effect, imposition requiring- degree the a highest of burden the part persons of engaged care on the closely of certain in activities public connected with the welfare. The rationalization is that breach of such law negligence is evidence of criminal and failure public to use principles care in the interest. Similar exist cer- imposing liability tain actions strict in tort. liability applied only pure Strict has been drug to food and _ violations, distribution and liquor traffic selling but to also the of against to to minors and sex age. offenses minors under a certain Ignorance of certain facts and even of the law where is no there guilty knowledge liability. of cases strict Criminal Wharton’s (Anderson), 1, §§157, Law 162, pp. Yol. 161 -and 381-390. liability simply imposition liability is not Strict an of without fault, imposition rather but the of where there is a strong presumption resulting of negligence fault from or an unwillingness facts, to learn person which a normal should know in connection with involving public the transaction welfare. Hall, Principles Law, See also: Géneral pp. 280, Criminal of generally view 299. “. . . The entertained that the distribution impure consumption perilous of adulterated food for is an act health, human to less life and cannot be made innocent and harm- knowledge by of good the want faith of the seller. itself, intent, guilt It is the act not the that determines the public the actual harm the other. is the same in one case as in the keeper unknowingly A restaurant who serves adulterated place responsible food in his penalizing Law business is under the statutes sale of adulterated articles.” Wharton’s Criminal (Anderson), 1066, p. Vol. Sec. 283. guarantee infringed opined, the constitutional speech. freedom to the Con- Amendments
First and Fourteenth of the United States. stitution part: that case said Brennan in Justice requirement By dispensing “. . . with part on the of the contents of book impose seller, tends ordinance public’s to consti- on the access limitation severe p. at .” S. tutionally protected matter. . . 361 U. 153. quotes approval the
and the court statement: ‘Every placed “. . bookseller would be an . under obligation to make himself aware of the contents every shop. altogether in his book It would approach to demand so The unreasonable near an King Ewart, 709; omniscience. 729, (CA) . . . .’” NZLR p. 361 U. at Judge attempts that case Brennan a rationaliza- In liability imposed under tion between Drug Food Acts been held con- Pure which have stitutional, printed that in case obscene mat- *18 says: pictures. He and ter . The usual rationale such statutes is “. . for public purity interest of its food is
that high imposition great as warrant so of care fact an standard on distributors —in est which will not hear the dis standard absolute plea as to the amount of care he has tributor’s Balint, 250, 258 Cf. United v. U. S. used. 607, 252-254, ignorance There 604, L. 42 His ed. S. Ct. 301. 66 the character of food is irrelevant. of specific no constitutional inhibition is making food against the distributors of the strict merchandise, of their but the constitu censors est guarantees speech of and of freedom of tional 290 press way imposing stand in the a similar requirement (Our italics.) the bookseller. . .
This rationale is difficult
us
for
to follow.
It first
provisions
assumes that
protecting prop-
constitutional
erty,
personal
liberty
contracts and
not as
sacred
precious
speech.
assump-
that of
freedom of
This
gives
tion further
no consideration to the constitutional
police power
protection
pub-
exercise of
words,
lic morals
well
as health.
In other
it defines
speech
beyond
a freedom of
far
the limitations which
guarantees
personal
surround other constitutional
liberty, property
contract,
may
all which
be cut
legislation
protection
down
reasonable
for the
public
police powers.2
under the
(1957),
476,
In Roth v. United States
354 U. S.
77
1304,
(where
S.
1 L.
2d
Ct.
Ed.
the statute con-
Tucker;
See the more recent cases of Shelton v.
v.
Carr
—
(December
Young
12, 1960),
,
247,
U. S.
81 S. Ct.
5 L. Ed.
—
231,
right
inquire
2d
where the
of a local school board to
into the
organizations
applicants
belonged
to which
to teach school
affiliated,
theory
were
an
held
be
under some
of free
infringement
court, assuming
thereon. There the
to deter
legislative policy,
mine the wisdom of
said: “In a series of deci
that,
governmental
though
sions
Court has held
even
purpose
pursued by
legitimate
substantial,
purpose
be
cannot be
broadly
personal
means that
stifle fundamental
lib
narrowly
erties when the end can be more
achieved. The breadth
legislative abridgement
light
must be viewed in the
of less
achieving
purpose.”
ask,
drastic means
the same basic
We
power
under the
who
constitution has the function and
to deter
achieving
purpose”
mine whether the “means for
the same basic
May
legislative
judiciary
shall
“less
policy-
drastic”?
take over such
making
body?
Judges
always
functions
should
against
letting
personal
guard
logic.
legal
their
views override
expansion by
“to
the United States
Court of the
regulate
among
clause
commerce . . .
the several states”
(Art. I, §8(3)
behold,
Const.)
amazing
S.U.
since the court
testing congressional legislation
never seemed to consider in
achieving
pur
field whether the
“means for
the same basic
pose”
accomplished by
could not have been
“less drastic means.”
(1948),
Mut.
Ins. Co.
262,
Darr v.
N. Y.
F.
2d
Cert.
Life
(Elevator
Op
Den. 335 U.
erators and
S. Ct.
291 scienter) Su- United tained the element preme previously had said: Court the area of obscenity not within hold that is “We
constitutionally press.” protected or only exercised police power can be To hold against obscene, there matter where and indecent lewd may knowledge, it be guilty a scienter or but is drugs against on a strict impure and foods exercised knowledge, is make liability guilty without a basis wording which is warranted under distinction If lia- States. of the Constitution United constitution, it is bility then permissible under is legislative policy cases in as to the which a matter of holding places a court in The should be invoked. legislating. function of point out that
We Smith Case for some reason gives no consideration to the effect the Federal regulates Act, licensing Communications of radio and television and to number stations some program they may what broadcast. 47 extent pro- act U. S. C. This fixes a strict §151. may suspended profane that a license where vides language meaning or The dis- and obscene used. plain immediately since the tinction section made requires following the element scienter.
n suspension act authorized license any operator who: superfluous “(D) . . . has transmitted radio signals or or communications communications con-
taining words, language, profane or obscene knowingly meaning, or has transmitted— signals deceptive “(1) false or or communica (Our italics.) (m) tions, . .” U. S. C. . §303 ; (1) (D) Radio v. Nelson Bros. Comm’n Co. 53 S. Ed. (1933), 289 U. S. Ct. L. 1166; Trinity Church, *20 Methodist South v. Federal (1932), App. 311, (2d) Radio Com’n D. 61 C. 62 F. 850. regulated
Radio television are communication stations, broadcasting and limited to the number type programs character the and in various aspects. so, other be in Were this field would complete chaos a within short Interference would time. complete little, be so any, that if effective communica- Congress, tion It would result. that is contended under power regulate among states, commerce has right infringe a thus to to a freedom degree slight by comparison far transcends placed upon him- inconvenience a bookseller assure obscene, self that the materials he for are not offers sale Supreme lewd and indecent. At same time police power may place Court on a rationalizes drug informing or food dealer the himself burden purity product protection as to the of his public health.
Under the Federal Act the Communications United States Court has may held that the FCC use determining as a may may standard in what or not be broadcast, Code, Criminal which makes broadcast- ing concerning crime, of information lotteries a broadcasting well as the profane obscene and matter. “knowingly” The words of scienter “wilfully” omitted from the criminal statute. 18 U.S.C.A. §§1464 and 1304. legislation approving
In the United Su- preme “give involving away” said a Court case programs: below, “Like the court we have no doubt that the Commission, concurrently Department with the
Justice, power has the to enforce Section Indeed, the Commission would be remiss in its du- failed, licensing ties if it in the exercise of its authority, statute, implementing to aid in by general either rule individual decisions.” Federal Commun. Com’n American Broad. Co. (1953), L. S. 74 Ct. Ed. 699. U. speech regarding lotteries, profane If freedom of may obscene matter be restricted in radio and television broadcasting scienter, certainly without a then may same matter be restricted hands of bookseller.3 obscenity
Lewdness and are not within the area of constitutionally protected speech, since such matter utterly redeeming without social features. Roth v. United States 354 U. S. 77 S. Ct.
1 L. police power Ed. 2d may 1498. The be exercised restraining recognized the in social evils to the same extent the may interstate commerce clause be utilized.
The say Constitution not does the commerce clause may greater Constitution restrict to a degree speech free police power (reserved than does the regardless states) to the employed. of all the semantics police power just exercise of is as constitutional potent power regulate and as as the exercise to greater interstate commerce. Neither has or lesser right infringe upon speech. free We fail to follow path the tortuous which different results are reached. power many Police times cuts down the unlimited personal liberty, including areas speech freedom of guarantees. other and constitutional This is done to society protect and social interests. Constitutional guarantees yield must to “reasonable” exercise of the obscenity 3. For a collection of cases on control in radio television, Hober, and see: Emerson and Political and Civil Rights Ed., 2, p. in the Vol. U. S. [2 941]. long principle police power. too It is a constitutional question. established to right, otherwise, constitutional,
No fundamental society is ours. In absolute unlimited in this rights things, can be absolute and nature no personal liberty life we unlimited —not even —if neighbors. even are restrained live with our We highways in our liberties for streets and on the power police in our the benefit of all. The intervenes daily eliminate friction and relations with others rights may not order that of one fundamental infringe rights upon the of another mem- fundamental society. freedom of such Absolute and unlimited ber only society everyone side of reverse government anarchy. and order No of law the coin possible of unlimited free- be under the doctrine would organized society totally Speech cannot in an doms. unrestrained. judiciary omnipotent
Is the so that it can assume the legislative policy-making what, say function and under police power legislation particular is the best for a locality, “public protect or that it is in the interest” to food, stomach from rotten but mind from obscenity indecency? judiciary rotten Should legislature say physical or the health is more im- portant than mental health? greater danger
Is there a to freedom of placing responsibility bookseller the of in- *22 knowing specting and public what he offers to the than placing upon a broadcaster responsibility for profanity, obscenity lewdness and over the radio or on screen, readily young television reach the impressionable? The Smith and Case manifests such infringement inconsistency an legislative and function. agitation public
There has been considerable recent over sex crimes. Is this matter of concern for the legislature? legislature May courts or the not a deter- increasing therefore, mine that sexual crimes are public strong as a policy, matter of decide that (through legislation fixing strict measures lia- bility) necessary obscene, to reduce lewd and in- encourages decent matter which sex crimes?
I judiciary do not repository believe is the sole good judgment, goodly wisdom but rather that a portion of ability such talent and was reserved for use legislative government branches of the under determining the constitutional functions what is best people. Although for always agree I cannot with legislative action, the wisdom of fight I will still right legislative for the govern- of the branch of the ment to do what it best thinks within its constitutional making. up function of law purpose It is set for that representative because it peo- is more ofwill ple in a government, democratic form of than is the judiciary. It province judiciary is not within the achieving to determine whether or not the “means legislation purpose” the same basic been could have accomplished by “less drastic means.”4 Such a standard legislation for constitutional measurements of turns discretion, judgment over the court the and wisdom legislative reposed government branch of under the constitution. imposition
If
of strict
constitutional
(as the
Court has held in the
United
Drug
Cases)
Act
then it is a matter for
Pure Food and
legislature
rather
than the courts
determine
Tucker;
Young (December 12, 1960)
Carr v.
Shelton
—
—, 81
The United Constitution States constitution, of the United “This and the laws thereof; pursuance which shall be made in States supreme and all treaties . . . be the law shall land; judges every and the state shall (Our italics.) VI, thereby, Article bound cl. United States Constitution. . . .” says provision It is to be noted that this constitutional every by judges bound” that the “in State shall be Constitution, respective as the United States well they We state state constitution under which serve. judges uphold take oath the same to Constitution of the United of the United States do members States obligation uphold to have the same We Court. interpret Under that mandate Constitution. duty fail would be derelict should we we our interpretation provisions state of the Consti- our thereby.” and to “be bound tution of the United States nothing honorable, There is after commendable or taking oath, uphold an United Constitution of the submitting meekly and of the State States of Indiana in appears to what to be an obvious inconsistent encroach- rights self-government guaran- ment of local powers teed the United Constitution under the my reserved to states. Under I oath office refuse along ignores philosophy with to be carried which specific provisions of the United States Constitution powers states, reference reserved to the in- cluding police power to restrict the sale of obscene indecent matter within borders. its hold that the Constitution of the
We United States prohibit police does not the reasonable exercise of the restricting power state in of a the sale of obscene and legislative policy to matter of matter. It is a indecent the im- not conditions determine whether or warrant liability position in the eradication of evils of strict injurious public health morals. The to the question does not concern itself with constitution liability. imposition If the of strict *24 nothng cases, pro- constitutional in some then we find legis- hibiting imposition the in other cases where its fit. lature sees meaning regarding have the the Con-
What we
said
of the
true of
stitution
United
is likewise
Constitution of
State
Indiana which states:
restraining
passed,
shall be
the free
“No law
interchange
the
thought
restricting
opinion,
right
write,
speak,
print, freely,
right,
subject whatever: but
the abuse
person
responsible.”
(Our
every
Article
italics.)
shall be
Indiana.
Constitution of
§9,
recognizes
The Constitution of our
State
reasonable
speech
respon-
the freedom of
limitation
regard
sibility
person
Apparently
of a
thereto.
had
framers of the Indiana Constitution
no real con-
growing
censorship
of a
re-
cern about
out
reasonable
the abuse from an
use of
straint
avoid
unlimited
right.5
guarantee
gives immunity
no
from
from
“The
police
proper
control which is
exercise
form of social
power
Supreme
Court of the
States.
as understood
United
just
Supreme
controls what
as the
Court
words,
In other
courts
leg-
enjoin
may
publication so it controls what
before
punishable
publication.
may
This is the
make
after
islatures
Supreme Court
far
the Fourteenth
so
as concerns
doctrine
Amendment.
press
and of the
That makes freedom
process
interpretation
vary
lawof
varies.
In its
due
adopted
process
Court has not
the mean-
clause the
due
ing
adoption
it thinks
process of
had at
but
‘due
law’
the time of the
the words
meaning
provisions
whatever
of the constitutional
par-
at
time of the decision
reasonable
of each
Speech
Willis, Hugh, Freedom
And
case.”
ticular
Press,
Of
J. 445.
Ind. L.
sustaining
The trial
court erred
the motion to
quash
charge.
Reported in
Note. —
Brown v. State of Indiana. February 2, [No. 0-604. Filed 1961.]