202 N.W.2d 648 | Minn. | 1972
Lead Opinion
Defendants, owner-licensee and manager of a commercial motion picture theater in Minneapolis, were convicted by the Hennepin County Municipal Court, sitting without a jury, of exhibiting an obscene motion picture entitled “The Art of Marriage” in violation of Minneapolis Code of Ordinances, § 870.080.
Conceding, as they must, that if the film is obscene under constitutional standards, its showing violated the express prohibitions of the city’s ordinance, defendants essentially contend that, contrary to the findings of both trial courts, the. content of the film as commercially shown to the adult public is not ob
As -was the case of some of the still photographs in State v. Hoelscher, 294 Minn. 433, 202 N. W. 2d 640 (1972), this motion picture film explicitly portrays heterosexual intercourse, neither simulated nor suggested but actual (though seemingly tedious), libindinous, copulative, genital sex.
Mindful of our sworn duty to enforce First Amendment rights, our review of the record, which included viewing the film to independently determine the issue of obscenity vel non as prescribed by Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. ed. 2d 793 (1964), proceeds on the fundamental that the First Amendment prohibits criminal prosecution for the public dissemination of any form of alleged obscene materials, including moving pictures,
We reject defendants’ only plausible argument — that the testimony of defendant Lebewitz and the unrebutted opinion evidence of a former municipal judge and practicing lawyer of wide experience in handling divorce cases compels a finding that the film has a modicum of redeeming social value. We concur in the finding of the district court, contrary to defendants’ claim, that the film is utterly without such value and that the guise of educa
Defendants mistakenly argue that a reversal is required by Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. ed. 2d 515 (1967). As was more fully set out in State v. Hoelscher, supra, the Roth-Memoirs standard has not been superseded by Redrup.
Although the United States Supreme Court has not yet precisely defined “hard-core pornography,”
Finally, we cannot agree with the district court’s finding that the defendants were guilty of pandering as defined in Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L. ed. 2d 31 (1966), and its progeny in soliciting patrons for the movie “The Art of Marriage.” Rather, defendants’ advertisements were directed — whether adequately or not — to prevent exposure to juveniles and to warn the adult public of the movie’s contents.
Affirmed.
The ordinance in pertinent part provides: “It is unlawful for any person knowingly to exhibit * * * any obscene * * * motion picture film * * *. ‘Obscene’ for the purpose of this section is defined as follows: Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interests.”
Although actual vaginal penetration was not explicitly portrayed, the scenes viewed in the context of the intention of the producer as advertised by the exhibitor and as expressed by the narrator would not, we believe, be regarded by the average viewer as merely simulating penetration. Moreover, the notion that the sequences of sexual intercourse were simulated and not actual is contradicted both by the defendants’ advertisements of the film and by the testimony of defendants’ witnesses themselves.
Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. ed. 1098 (1952).
Under this test, material is obscene if three criteria are satisfied: (1) To the average person the dominant theme of the material taken as a whole appeals to prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to a description of sexual matters; and (3) the material is utterly without redeeming social value.
While the protracted scenes depicting various positions of sexual intercourse may be characterized as “tedious” in the sense of being boring and mentally tiring to an audience of judges engaged in discharging a distasteful duty, we entertain no doubt that such prolonged portrayals were deliberately included to stimulate the erotic response of an audience of young adults which the exhibitor anticipated would, and in fact did, uncomplainingly pay the $3 admission price.
The standard laid down in Roth and Memoirs was cited with approval in Stanley v. Georgia, 394 U. S. 557, 568, 89 S. Ct. 1243, 1249, 22 L.
See, State v. Hoelscher, 294 Minn. 433, 202 N. W. 2d 640 (1972).
Hartstein v. Missouri, 404 U. S. 988, 92 S. Ct. 531, 30 L. ed. 2d 539 (1971), reversing 469 S. W. 3d 329 (Mo. 1971), closeups of nude women and one scene suggesting homosexual behavior in the movie “Night of
Whether it is constitutionally permissible to display any sexually oriented films in a commercial theater when surrounded by adequate notice to the public of their nature short of pandering and by reasonable protection against exposure to juveniles is an important issue which has neither been raised nor adjudicated in this case. We note that the United States Supreme Court has requested argument on this issue and granted certiorari in Paris Adult Theater I v. Slaton, 408 U. S. 921, 92 S. Ct. 2487, 33 L. ed. 2d 331 (1972). See, Slaton v. Paris Adult Theatre I, 228 Ga. 343, 185 S. E. 2d 768 (1971); and cf. Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. ed. 2d 542 (1969); United States v. Reidel, 402 U. S. 351, 91 S. Ct. 1410, 28 L. ed. 2d 813 (1971).
Dissenting Opinion
(dissenting).
Whatever else may be said of the motion picture “The Art of Marriage,” it certainly does not, in my opinion, appeal to the average person’s prurient interest. On the contrary, it is a tedious and uninspired portrayal of sexual activity which is quite obviously simulated. If there is anything remotely romantic or erotic about it, I confess it has eluded me. It is about as sexually provocative as a documentary on techniques for artificially inseminating cattle. To classify the film as hard-core pornography is to ascribe to it a salacious appeal which is wholly undeserved.
In any case, if the film were to be shown only to bona fide clients for marriage counseling, it quite obviously would not be obscene but might well be of substantial benefit to couples with marriage problems.
The Supreme Court has repeatedly applied Redrup to hardcore pornography. Cain v. Commonwealth, 437 S. W. 2d 769 (Ky. 1969), reversed, 397 U. S. 319, 90 S. Ct. 1110, 25 L. ed. 2d
I would reverse.
While the narrator’s discussion was explicit, it was, nevertheless, presented with clinical detachment.
Dissenting Opinion
(dissenting).
While I would prefer to do otherwise, I believe we are required, pursuant to the decisions of the United States Supreme Court, to hold the exhibiting of this motion picture to be constitutionally permissible. I concur with the opinion of Mr. Justice Otis that the motion picture, taken as a whole, does not appeal to the average person’s prurient interest in sex and that the motion picture is not utterly without redeeming social value. I also agree that the film is not hard-core pornography, and I disagree with the majority that the contents of this film can be compared with the still photographs in State v. Hoelscher, 294 Minn. 433, 202 N. W. 2d 640 (1972).
I do not wholly agree with the interpretation given the Redrup opinion by Mr. Justice Otis, and for that reason I have today voted to affirm the convictions in State v. Hoelscher, supra,
Dissenting Opinion
(dissenting).
I concur in the dissent of Mr. Justice MacLaughlin.