3 Conn. Cir. Ct. 309 | Conn. App. Ct. | 1965
The dispositive issue on this appeal is whether the four nudist magazines,
The four magazines found to be obscene and condemned as a nuisance in the court below are representative nudist magazines. The trial court found
In our view, we deem the case of Sunshine Book Co. v. Summerfield, 355 U.S. 372, per curiam, decisive of this appeal.
This summary reversal has provoked lively discussion in the courts and among the commentators. To our own Supreme Court, it did not appear whether the United States Supreme Court made an independent examination of the allegedly obscene material in question; our court assumed that the United States Supreme Court applied the standard laid down in Roth. State v. Andrews, supra, 98. To the Supreme Court of California, it seemed clear that the “most plausible meaning of . . . [this summary reversal] in view of the citation of only Both . . . , must be that the materials there involved could not be held obscene.” Zeitlin v. Arnebergh, 59
Nothing, of course, in this opinion is to be construed as indicating our approval or disapproval of these magazines. All we decide is whether the publications are obscene in the light of applicable standards and therefore subject to repression. Nor does our decision in this case require an expression of opinion, judicial or otherwise, concerning the relative merits of a gymnosophical society; for obviously, the answer to a sociological phenomenon of this kind lies outside our professional competence. Our determination of this case is restricted to the sole question whether the material in question is suppressible under applicable standards. In holding that the impugned material is not obscene, we rest our decision squarely upon our interpretation of Sunshine Book Co. v. Summerfield, 355 U.S. 372.
There is error, the judgment is set aside and the case is remanded with direction to render judgment that the magazines are not obscene, and to vacate the order of confiscation and destruction.
In this opinion Dearington, J., concurred; Cicala, J., dissented.
The impugned material consisted of four exhibits: “Urban Nudist,” “The Western Nudist,” “American Nudist,” and “Suntan.” These nudist magazines advocate and explain nudism and the nudist mode of living. They contain a substantial but innocuous text.
Under § 53-244a, “ ‘obscene’ means that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest . . . .” See State v. Andrews, 150 Conn. 92, 100. We are required to apply a national standard. “We thus reaffirm the position taken in . . . [Roth v. United States, 354 U.S. 476] to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.” Jacobellis v. Ohio, 378 U.S. 184, 195. What to one judge may seem incontestably obscene may be to another merely dull and tawdry. Compare Womack v. United States, 294 F.2d 204, cert. denied, 365 U.S. 859, with Manual Enterprises, Inc. v. Day, 370 U.S. 478.
The trial judge was undoubtedly under pressure to apply the standards in the Both-Sul-Andrews eases; and in the process, he meticulously and scrupulously analyzed each of the exhibits and arrived at the approximate percentage of nudes in each of the magazines and the approximate percentage devoted to the textual matter. This is quite similar to the technique used by the trial judge in Sunshine Book Co. v. Summerfield, 128 F. Sup. 564, 571, 572. This approach prompted Thurman Arnold to say: “The spectacle of a judge poring over the picture of some nude, trying to ascertain the extent to which she arouses prurient interests, and then attempting to write an opinion which explains the difference between that nude and some other nude has elements of low comedy.” Kalven, “The Metaphysics of the Law of Obscenity,” 1960 Sup. Ct. Rev. 1, 44, quoting from the brief (p. 22) of the respondent-appellant in Vermont v. Verham News Corporation, 121 Vt. 269.
Cf. Parmelee v. United States, 113 F.2d 729, where the only question before the court was whether the book, “Nudism in Modern Life,” was obscene. Miller, J., held that the book, under the applicable standard was not obscene; Vinson, J., dissented. See also United States v. 4200 Copies International Journal, 134 F. Sup. 490, where nudist publications designed to portray nudist practices and to secure new converts to the movement were held obscene and subject to condemnation and destruction. On appeal to the Court of Appeals, the judgment was affirmed, per curiam. Mounce v. United States, 247 F.2d 148. And on appeal to the United States Supreme Court, upon confession of error by the solicitor general, the judgment of the Court
The hearing examiner of the post office department described in detail the material in the February, 1955, issue of “Sunshine and Health” as follows: “The front cover displays a full-page photograph in color of an entirely nude, young, attractive and shapely woman. On the inside of the front cover is another large photograph of a woman whose upper body and breasts are nude. On the rear cover there appears a large photograph of naked women and a naked man. The inside pages contain some 15 photographs of naked men, women and children, singly and in groups. Details of naked buttocks, female breasts and pubic areas, and male genitalia are clearly revealed in some of them Brief (p. 4) of the respondent in opposition on petition for certiorari in Sunshine Book Co. v. Summerfield, 355 U.S. 372.
The January-February issue of “Sun Magazine” was described in this way: “On the front cover and on the inside of the front cover are large photographs of two naked women, the former being in natural color. The rear cover displays a photograph of two naked women in a rubber raft floating on the water. Within the pages of the magazine are found some 25 or 26 photographs of naked men, women and children, shown singly and in groups. In some of these female breats [sic] and pubes and male genitalia are clearly revealed . . . .” Brief (p. 9) of the respondent in opposition on petition for certiorari in Sunshine Book Co. v. Summerfield, 355 U.S. 372.
The hearing examiner ruled: “The right to practice nudism and to advocate its practices by any lawful means is not in issue here. But in the course of such advocacy the display of unadorned nakedness to the public generally is surely offensive to presently prevailing American standards of decency and modesty. The fact that the photographs in these magazines may illustrate nudist life and activities and are accompanied by relevant textual matter upon the subject does not in any way tend to lessen the erotic impact of the photographs themselves upon the mind of the ordinary person. For these reasons I regard the two issues of ‘Sunshine and Health’ and ‘Sun Magazine’ in evidence as obscene, lewd, lascivious and indecent. (Cf. Sunshine Book Co. v. McCaffrey [8 Misc. 2d 327] ....)” Brief (p. 10) of the respondent in opposition on petition for certiorari in Sunshine Book Co. v. Summerfield, 355 U.S. 372.
The opinion of the Court of Appeals is unreported. A copy appears in appendix 2 (p. 62) to the petition for certiorari in Sunshine Book Co. v. Summerfield, 355 U.S. 372.
Circuit Judge Burger took no part in the hearing or consideration of this case. Sunshine Book Co. v. Summerfield, 249 F.2d 114, 115.
The judgment of the court was announced by Danaher, 3., in an opinion joined in by Prettyman, Miller and Bastian, Js.; Fahy, J., concurred separately; Washington, J., joined by Edgerton, C. J., and Bazelon, J., dissented.
To Judge Hammond, dissenting in Monfred v. State, it appeared (p. 338) that “[t]he Supreme Court must have made an independent examination of the material . . . and found that censorship offended constitutional privileges for the Court simply reversed on the citation of Both, and so terminated the litigation and gave final protection to the material.” Cf. Newark v. Licht, 83 N.J. Super. 449, 504 n.
"The most likely explanation is that the Court found for itself that the magazines in question were not 'obscene’ within the constitutional standard.” Lockhart & McClure, ''Censorship of Obscenity: The Developing Constitutional Standards,” 45 Minn. L. Rev. 5, 34 n.168 (3).