*1 Mаy 6, 41365. En Banc. [No. 1971.] Washington, Respondent, Rabe, State v. William Appellant. Williams, Schuster, Rembert Critchlow, & Ryals for Ryals, appellant. Attorney, Prosecuting Lud- Davis, and Curtis
Herbert H. wig, Deputy, respondent. appeal en- from a is an J. This
McGovern, of ex- crime tered the defendant’s conviction *2 hibiting picture an motion film violation RCW 9.68.010. managed an drive-in
Defendant outdoor theater city of arrest, Richland. At the time of his he exhibit- was Baby” imposed ing picture the motion “Carmen and had no age upon picture paying restriction audience. The way screen the outdoor theater situated in such a was adjoining family that it 12 to 15 faced residences and a nearby portion major highway. upon Pictures screen were thus visible to residents those and homes guests, passing highway, their motorists and to persons just those would lоok who screen from out- retaining enclosing side the chain-link fence theater grounds.
August police 1968, a Richland officer stood outside portion being the theater and fence observed a of the film following night, vantage point, shown. The from the same city attorney officer that and the Richland viewed almost teenage younger occasions, entire film. On both and by watching children were observed the officer to be picture points from various outside the theater fence. complaining appeared
Thereafter, officer before justice peace Richland and testified he that had picture. observed the motion He described some of the objectionable more scenes of the movie and informed the magistrate teenage pre-teenage children were viewing picture periphery from the of en- theater Upon complaint, closure. formal written a warrant for the arrest the defendant was then issued and executed. As evidentiary purposes, an arrest, incident to the two Baby” of film reels of “Carmen were seized the arrest- ing officers. defendant was convicted the Richland
October unlawfully “wrongfully District Justice Court caus[ing] an immoral obscene, to be exhibited indecent and contrary thereupon appealed show” RCW 9.68.010.1He County following Superior a trial Benton Court where charge. again guilty de found novo, he was superior picture ob- court did not conclude that the entirety, portions or scene in rather that “Individual its but passing . . scenes of the . are obscene and to movie persons those outside theatre motorists residents It there- individual scenes become movie themselves.” exhibiting guilty fore concluded that the defendant was accordingly. an obscene movie and entered argues appeal, On that the seizure defendant first evidentiary purposes the motion film for without a prior adversary hearing question of right prior on his First constituted restraint Amendment *3 speech. to freedom of He contends that the rule announced (7th 1968), appli- Metzger Pearcy, v. 393 F.2d Cir. is 202 requires conviction cable here and a reversal his that it improperly for film should not the reason that the seized Metzger, against hаve in evidence him. In been admitted page said, count 204: 809, L. Ed. 84 S. [378 Books U.S. 12 205, lesson (1964)] cannot Ct. officers 1723 is that law enforcement allegedly publications prior ad- without seize obscene obscenity. versary proceeding Such on the issue Amendment the Oonstitu- seizure violates the First “Every provided: person who— 9.68.010then 1RCW exhibit, “(1) Having knowledge sell, thereof shall contents having knowledge display distribution, distribute, or or sale possession to sell or in his with the intent shall have contents thereof book, newspaper, any book, magazine, pamphlet, writ- comic distribute tape phonograph record, photograph, picture film, ing, or wire motion any thing object figure, picture, drawing, image, which recording, or or obscene; is or Having knowledge “(2) thereof shall cause to be of the contents engage performance performed exhibi- exhibited, or or shall obscene; any show, act, play, which dance or motion is tion of guilty gross misdemeanor.” “Shall be
257
tion is a
con-
the United
restraint
prior
Burstyn,
demned
light
Court.
Supreme
1098,
L. Ed.
72 Ct. 777
supra
495,
(1952)],
U.S.
96
S.
[343
Pictures,
L.
supra
1512,
U.S.
3
Ed. 2d
Kingsley
[360
Jacobellis,
Although
numerous
federal
district
and circuit
courts have
that a
recently adopted the viewpoint
prior
adversary hearing must be afforded before an allegedly
picture may
constitutionally
impounded
Mackell,
v.
(Metzger
Corp.
Astro Cinema
v.
Pearcy, supra;
Demich,
422
(2d
Ferdon,
F.2d 293
Cir.
Inc. v.
426
1970);
643
1970);
Films,
F.2d
Cir.
Cambist
Inc.
(9th
v. Duggan,
420
(3d
Wilkinson,
F.2d 687
410
1969); Tyrone,
Cir.
Inc. v.
F.2d 639 (4th
1969);
Cir.
Bethview Amusement
v.
Corp.
Cahn,
F. (M.D. Court, Fla. Natali v. Supp. 1970); Municipal 309 F. Cal. (N.D. therein), and cases cited Supp. 1969) we, unlike those are courts, that our nation’s persuaded highest court an case adversary requires hearing every before a film be seized as evidence an law violation.
The three decisions of United Court States which consider whether particular are prior adversary hearing constitutionally required Marcus v. Search Warrant L. Property, Ed. 2d A Quantity Ct. 1708 (1961), Copies *4 Kansas, Books 809, v. 378 84 Ct. 205, U.S. 12 L. Ed. 2d S. 1723 Lee Theatre, Virginia, Art Inc. v. 392 (1964) U.S. 636, 20 L. 2d 88 1313, (1968). Ed. Ct. 2103 S.
In Marcus, the seizure ap- court found the of improper 11,000 con- of proximately 280 different copies publications sidered were by the to be obscene items. The officers police under a acting general warrant the confiscation authorizing all of “obscene” materials the defendant’s upon premises.
258 merely prior ad- Mr. Justice Brennan noted the absence obscenity versary hearing question on the of the items Speaking majority, de- to for the he considered in seized. be granted magistrate the error of who tail, however, procedures police the aid of “de- a search warrant without obscenity.” signed searchingly on focus magistrate publication to the No had been submitted before he warrant constituted an unlim- issued the warrant. any authority publications seize which the officers in ited Although obscene. considered their discretion suppressed material, it nevertheless distin- seized court guished suppression and indiscriminate
that extensive temporary challenged publications from the restraints Kingsley publications approved of it had selected which 1469, 77 Books, Brown, 436, Inc. L. Ed. S. U.S. Ct. 1325 Copies police Quantity Books, made in A Then, copies confiscating of 31 novels 1,715 seizure,
another mass hearing adversary premises. on An found the defendant’s prior of the held issuance warrant had been to the judge seizure, issued which authorized the who but parte warrant ex examination made 45-minute involved and the titles novels seized, materials prosecuting filed had been the information listed attоrney. procedure the constitu- held to violate That speech against abridgment of freedom of tional restrictions press authorized the sheriff to “since warrant here specified [the de- copies titles, and since seize all hearing question of the fendant] was not afforded obscenity . before the issued”. . . warrant disagree Metzger decision the 7th Circuit Quantity Copies Books progeny A Marcus and Joseph Burstyn, Ed. 495, Wilson, Inc. v. Corp. Kingsley (1952), Int 'l Pictures 72 Ct. 777 Regents, L. Ed. 2d 79 Ct. 1362 Ohio, 12 L. Ed. 2d S. Ct. Jacobellis v. 378 U.S. adversary prior hearing (1964), necessarily require a can before a the issue *5 Burstyn, Kingsley In Pic fact, as be confiscated evidence. question specific tures, and Jacobellis did not consider prior adversary hearing. Quan A of a In Marcus and both tity Copiеs being Books the statute enforced called for of of proceedings against directly for civil materials and police their eventual instances, destruction. both impounded allegedly publications they all premises. great crucially, found on the Most amount variety judicial of materials seized without sufficient guidance publi created substantial risk that nonobscene Certainly scope suppressed. cations would also be consequences imposition of those seizures of warranted procedural safeguards. necessity additional for But the prior adversary hearing substantially here, less as when, single the seizure item, is limited to a the detention is temporary, only and the action after is initiated a cautiоus judicial scrutiny of the sensitive issues involved. single pronouncement Supreme
The of the United States concerning picture Court the seizure of motion prosecution supports evidence for an our inter- pretation Quantity Copies of Marcus and A Books. In of authority Theatre, Lee Art on Court, Property, Marcus v. Search Warrant 6 L. Ed. 2d 81 Ct. reversed the conviction operator picture possessing a motion theater exhibiting per obscene and curiam lewd films. opinion noted, however, issued warrant had been solely conclusory on the basis of statements the affidavit police magistrate issuing officer and that the had not inquired grounds into the factual for the officer’sassertions. process obviously satisfy Becаuse that failed to Marcus’ “designed procedure searchingly demand for a to focus obscenity” the confiscation of the film was improper, against and its introduction into evidence defendant necessitated a reversal of his conviction.
Significantly, suggest prior the court did not that the adversary hearing postulated Quantity Copies rule Ain applicable Books was seizure a though even it obvious that the warrant was
film, only parte proceeding. Mer- an As issued after ex noted (E.D. 1970), Supp. ritt v. Lewis, Cal. F. Copies precedential Quantity “Whatever A value hearing require- pre-seizure adversary have, Books *6 yet applicable picture Accord, isment not cases.” Supp. Ventures, 802, Entertainment F. Brewer, Inc. v. (M.D. 1969). Ala. agree Supreme Merritt We that the United States hearing adversary require pre-seizure Court does not be- allegedly fore an can be confiscated obscene motion Quantity Copies Books, Marcus and A evidence. of of (1964) sug- 378 U.S. L.Ed. 2d 84 Ct. constitutionally only gest hearing required that such a is apparently materials, of intended when a massive seizure suppress is contents, further the ef- dissemination through procedures First and Four- fected insensitive to As; guarantees. reemphasized in Lee Art teenth Amendment judicial inquiry primary Theatre, is test whether leading searchingly to the seizure “focused obscenity” freedom of the accused’s and was sensitive to expression. us of the record before indicates that
Our examination searсhing inquiry claimed into the nature clear and by obscenity of the Peace made Justice the movie was Yencopal he authorized the Albert J. of Richland before testified of the film. The officer who before seizure explained the more distasteful in detail some of court displayed upon of the movie which were lewd scenes general in balance screen, and he discussed theater descrip- here the narrative to set out the movie. decline We police officer. We are Richland that tions testified justice procedure court followed in satisfied that substantially pre-seizure complied out- mandates with the Copies Quantity Lee Books and A Marcus, in lined Virginia, L. 636,20 Ed. 2d 392 U.S. Theatre, Art Inc. v. Gibbens, 306 Bazzell v. F. also, See
88 Ct. 2103 1969), Wild, 422 (E.D. Supp. United States La. (2d 1969). conclude that the Cir. F.2d seized Baby” properly in evidence. “Carmen admissible argues trial conclusion of Defendant next that the court’s portions movie ‘Car- that “Individual or law scenes Baby’ persons passing are men obscene and to motorists those scenes and residents outside theatre individual legally a movie become themselves” sufficient existing under United States Court decisions to support obscenity.
Considering the facts us before within the framework legal Redrup principles York, v. New enunciated
386 U.S.
18 L. Ed. 2d
Ct. 1414
87 S.
(1st
1970),
Close v. Lederle,
Baby” totally is devoid obscene material and the record indicates that it not. is Roth Defendant stresses instead that v. United States, 354 Ed. 476, 2d 77 S. Ct. (1957), proposition stands that items are'not obscene unless “the dominant theme taken material appeals prurient argues, as a whole to interest.” Defendant therefore, that the reliance the trial on isolated court excerpts determining in the worth contents film’s analysis was erroneous. However, the of the trial court did guided solely by have to not though the Roth definition. Al- findings might the court’s and conсlusions have they sufficiently enunciated, been better we find that artic- legal judgment. ulated sound basis for the necessarily personally viewed the film and found it philosophical distasteful, of social, devoid per- However, artistic merit. this court cannot enforce guise charged sonal tastes in the are law. We with the duty upholding our state and federal constitutions and of guaran-
ensuring of the each citizen the fullest exercise to When, here, freedom tees in those documents. contained challenged by police speech press efforts are obscenity our of the laws, to enforce our resolution state necessarily guided by challenge the United States must confusing explication often Court’s troubled and expres- obscenity expression and what what constitutes protective federal is of the sion entitled to the liberties constitution’s First Amendment.
Unfortunately,
attempt
Roth to
in
that court’s
disappoint
obscenity
non
define
vel
has continued
community alike.
courts,
confuse the
commentators and
explanation
opinions
Subsequent
of the
or modification
in
only
growing
dishar
Roth formula have revealed
initial
mony among
justices.
concur
We would
views
Circuit, Inc. v.
in Interstate
Justice Harlan’s lament
20 L. Ed.
88 S. Ct.
Dallas,
divergence
viewpoint
upshot
this
that “The
all
anyone
de
the Court’s
undertakes to examine
is that
who
particular
ob
material
which have held
cisions since Roth
find himself
utter bewilder
or not
would
scene
obscenity
approach
best
The Roth definitional
ment.”
Book Named “John
Brennan in A
summarized
Justice
Attorney
Woman
Pleasure” v.
Memoirs
Cleland’s
Ed. 2d
However, we find “Carmen obscene that when consider, did, we as the context of its trial court exhibi- support holding Redrup tion. Our is found York, New 18 L. Ed. 2d S. Ct. 1414 Supreme and in three 1966 United States Court inaugurated approach decisions that to ma- “contextual” strictly terials not definable obscene. Memoirs, Court reversed “Fanny primarily
that the book Hill” was obscene, because the state court had minimized the social value element now incorporated Roth into v. United 354 U.S.
Ed. 2d 77 S. Ct. 1304 But Justice Brennan’s opinion, characteristically joined only by Justices Warren page Fortas, noted, also 420: necessarily
It does not from follow this reversal determination that Memoirs is constitu- improper tional sense would be under all circumstances production, . . pub- . sale, circumstances of licity determining are relevant or whether not the publication constitutionally distribution the book is protected. surrounding This concern circumstances the dis- picked up companion semination was case of Ginz- *9 264
burg Ed. 86 United 2d S. “pandering” principle Ct. en- There the grafted upon mail- Roth, conviction for and the defendant’s ing adopting affirmed. has obscene materials was In what approach, the been or termed “contextual” “variable” concurring opinion War- court drew on the of Chief Justice Roth, ren in it said: when perceive guarantеes no Amendment threat First pandering holding probative in thus in close cases evidence that respect nature of the mate- to the question satisfy .
rial in . . and thus the Roth test publications the fact exploited each of was created that these entirely prurient appeal basis its strengthens interests conclusion the transactions constitutionally protected here were . . . not sales matter.
(Footnotes Ginzburg, ours.) at 474. omitted. Italics majority York, Mishkin 383 U.S.
The same v. New (1966), upheld York 16 Ed. a New L. S. Ct. producing possessing obscene conviction for for sale homo- sadomasochism, books that featured fetishism Admittedly appealing practices. to “a aimed at sexual public clearly group, rather than the defined deviаnt sexual large,” support sup- interpreted Roth at the court pression “the of materials sexual interests directed ¡and recipient group”. probable intended “contex- cases, court offered a flexible In these three require- analysis supplement strict definitional tual” of Roth Roth. In cases” the elements ments of “close where interpreted satisfied, not the court in Memoirs could pro- circumstances of the the consideration allowed alleged mate- obscene duction, sale and distribution rial. Redrup, year added Court two later
One arguably justify state control of obscene more bases which opinion reversing per three There, the curiam materials. sharply focused “contexts” cоnvictions state per- offensive, thrust but of distribution method where juveniles haps constitutionally materials, unwilling public. and an none of the was there a claim that the statute cases specific state concern reflected a and limited juveniles. Massachusetts, Prince v. 321 U. 158; See Michigan, Butler v. none cf. U. 380. In was there *10 any suggestion privacy by upon of an assault individual
publication impos so in a manner obtrusive make it as to unwilling exposure for an individual sible to avoid it. Alexandria, Cf. Breard v. Public Utilities 622; U. S. Pollak, Comm’n v. 343 U. 451. none there And in was “pandering” evidence the sort which the Court significant Ginzburg found v. United 383 U. S. 463.
Redrup, 386U.S. at 769. Redrup’s emphasis preserva
areWe satisfied that privacy tion of individual from the assault offensive expression offers a and reasonable correct basis for our principal by upon decision. The case relied that court to support privacy rationale, Breard Alexandria, v. 622, 95 L. Ed. Ct. further scope right. contravailing
delineated the of this Breard, upheld requiring the court a local ordinance solicitors to entering a obtain consent homeowner’s before the home premises. magazine subscription The claim owner’s salesman that the ordinance violated his First and Four speech press Amendment teenth freedoms of de was guarantees speech nied the court said that the when of free press may privacy free be misused to invade home. one’s (1st 1970), Lederle,
Then
Close
F.2d 988
Cir.
Redrup’s protection
privacy
of the home was ex-
university
panded
hallway.
to include a
That
University
a
overturned
decision of district cоurt that the
had violated the
of Massachusetts
First and Fourteenth
fights
Amendment
of one
art instructors when it
display
his
art
controversial
from
removed
the corridor
of the institution. The district court had
walls
found that
annoyance
embarrassment
caused
obscene
abridgment
paintings
were not sufficient warrant
of the
Balancing
right
speech.
plaintiff’s
the interests
of free
against
rights
plaintiff
of the
of the users
instructor
that:
corridor, the court concluded
captive audience,
effect,
defend-
was,
there
Where
ants had
protection against
right
“assault
to afford
Redrup
privacy,”
York
see
v. New
individual
(1st
1970).
Lederle,
Thus
424 F.2d
Cir.
Close
university’s
action. It also noted that
court affirmed the
university’s action
bolstered
of the
was
reasonableness
rеgularly
particular corridor
used that
the fact
children
displayed.
had
materials
been
where
case
the circumstances
are satisfied that under
We
exhibiting
rightly convicted for
an ob-
defendant
picture film.
find that
the defendant’s
scene
arguably
proximity
film in close
anof
exhibition
community
highways
posed
Richland
homes
public.
annoyance to the
unreasonable
than an
more
*11
major
private
places
thor-
12
residences and a
to 15
record
range
viewing
oughfare
of
theater’s screen.
within
impact many
Considering
content
of the
and
visual
defendant should have known that these
scenes, the
film’s
repeatedly
be
and unwill-
and motorists would
residents
glimpses
ingly
of lurid and deviant sexual
confronted they pursued their normal aсtivities. As noted in
conduct as
Fording,
App.
Rptr.
820, 827,
245
54 Cal.
Cal.
Landau v.
per
(1966),
388
curiam,
18 L. Ed. 2d
177
aff’d
(1967):
1317,87
2109
S. Ct.
impact
distinguished
of a motion
visual
disregarded.
[not]
can
be
from
media
Films are
other
obviously
expression
forms
different
from other
.)
(Freedman Maryland,
p.
.
v.
.
sound,
.
movies
a
.
Even
the absence
assure
.
high degree of
.
.
.
attention and retention.
medium,
nature of the
think a mo-
Because
we
picture of
sexual scenes
transcend
bounds
tion
guarantee long
constitutional
before
frank de-
scription
of the same scenes
written word.
Entitled
Film
A Motion Picture
also,
See
United States v.
1968)
(2d
and
Cir.
“I
Redr rights adjustment and of the disseminator between nonconsenting into consideration the should take viewer Perhaps pass private public encounter. nature of the only momentary experiencing ing public shock motorist, ability possessing further to avoid embarrassment journey, by proceeding an incidental intru suffers his privacy official action. But too minor to warrant on his sion sug private immobility sanctity residence gest af the homeowner is considerations when different in the normal course of do conduct lascivious fronted right of the homeowner to be free activities. mestic displаys is ob of unsolicited intrusion from the manager’s viously theater paramount the outdoor abso he choose what films will exhibit to discretion lute unwilling willing audience. confines of his Within to select should able what stim property, a citizen own right And encounter. children will his he and uli unreasonably curtailed another citi privacy cannot speech press. guise freedom zen under Although never declared whether there is has court (Lewis right privacy in this state independent an Physicians Bureau, Inc., Credit Wn.2d Dentists & can there be little doubt 896, 899 P.2d *12 479, 381 14 L. Ed. 2d Connecticut, v. Griswold after right (1965), privacy the is that 1678 Ct. 510, 85 S. generally, doctrine. See W. constitutional as a enshrined 1964); Contempo- (3d 31 Law and § ed. Torts, Prosser, (1966); Mich. L. Rev. 197-288 rary 251-435 Problems Supreme Court held States (1965). United Griswold, prohibiting the use unconstitutional a law Connecticut 485), ('at contraceptives. Speaking majority Justice for the Douglas on to intrusion found the law a destructive be lying relationship, relationship zone marital “a within privacy constitutional created several fundamental pri- Certainly guarantees.” “zone home lies within vacy” protection And indi- which merits this court. privacy protection entitled than vidual is nowhere more home. home is intruded conclude that when a citizen’s films, exhibition of lewd and unsolicited viewing to avoid and there is no alternative reasonable displays resident’s violate that films, those such obtrusive right privacy” solitude, and and his to domestic “individual contrary display 9.68.010. is RCW such beyond scope to detail the It of this decision teenage for the concern of сourt welfare of pre-teenage who this film from outside the children viewed approval However, note that Stan- theater fence. we ley Georgia, 542, 89 S. Ct. 557, 567, v. 394 U.S. 22 L. Ed. 2d duty protect reaffirms children the states’ 9.68.010 material. Because RCW from contact with obscene specific “a limited concern for did not reflect state prosecuted, Redrup juveniles” defendant v. when 515, L. 2d 87 Ct. 1414 New Ed. S. York, 386 U.S. (1967) support conviction our affirmance of the could not part solely that children were on the fact known But outside the fence. RCW 9.68 has since “free” audience p. Ses., Ex. ch. amended. Laws now been viewing age provide “erotic” films. for on restrictions Dallas, 676, 690, 390 U.S. Interstate Circuit Ed. See Ginsberg (1968); York, New 225, 88 Ct. 2d L. 88 Ct. 1274 it 629, 639, 20 Ed. And legislation apparent means that future that such “close type amenable to an even of this will be broader cases” Redrup “specific application limited basis juveniles.” concern state today approach repre- taken .here
We believe *13 thinking obscenity the current sents in the area of highest court of our nation and offers fairest resolution conflicting presented. adopt interests here concurring Ginsberg, Stewart, statement Justice that: guarantees liberty The First Amendment ex- human pression preserve in order to in our Nation what Mr. Justice Holmes called a “free To trade more than ideas.” protects just end, the Constitution a man’s say publish freedom to or or write he It what wants. liberty secures as well the of each man to decide himself he what will rеad and to what he will listen.
(Footnote omitted.) Ginsberg, 390U.S. at 649.
The and sentence of the trial affirmed. court is Hamilton, C.J., Rosellini JJ., J. and Hale, Ryan, and Pro Tern., concur. Neill, JJ., and concur in the result.
Finley, Hunter, (concurring) except Hale, J. part concur to that —I opinion appears say which that material cannot be judicially utterly held obscene unless without social value (majority opinion, page 263), at as declared in A Book Named “John Cleland’s Memoirs Pleasure” Woman Attorney General, 413, 418, 383 16 L. Ed. 2d 1, 86 S. (1966). Deciding Ct. 975 whether material or has little literary, social, substantial educational or entertainment enough trying value is difficult without to determine if it is utterly catalog it. all, without Adcter a seed or a film travel- ogue readily pornography can be converted into while rе- taining vestiges some of social or other value. Even the depraved recognized filthiest, most work, in- by everyone ordinary understanding, stanter to be such possess spark claimed to some be of social value judicially utterly thus cannot said to without it.
Although Court of the United States, as is opinion, seen the court’s has the last word on freedom of speech, jurisdiction I think it has no whatever under the except perhaps for the District of Columbia constitution — literary prescribe moral, —to or social standards for the country large. judicial duty protect freedom large press speech imports no correla in the nation at pornography power preserve tive “[OJbscenity is not the area of constitution states. within ally press.” protected speech Roth United Ct. 1304 Accord L. Ed. 2d 77 S. *14 ingly, “filth or “filth for mon filth, whether for filth’s sake” (State ey’s Jacobellis, 173 179 v. Ohio St. sake” Ohio, 378 nom., rev’d sub Jacobellis N.E.2d 777 (1964)), 184, 12 2d is not and L. Ed. 84 Ct. U.S. S. community immunity granted from and not should deny except to and where such moral standards state law speech immunity deprivation of a of freedom amounts to speech press press. a commercial and is not and Freedom obscenity pornography. obscenity and and Nor is license pornography protected That clause. commerce Con gress trans and the do not bar the interstate federal courts pornographic filthy, portation film, movie obscene and prevent in I their constitutional not, think, does states public power рrohibiting police from exercise is so for of such materials. This and sale distribution allowing or 'adulterated reason that contaminated same goods drugs to move in and other consumable foods and override the does not fundamental interstate commerce prohibit power sale and A to their distribution. states constitute direct attack on think, I would rule, different self-government. ideas of speech import aphorism that freedom of does Holmes’ applies right falsely in crowded theaters “fire” shout pornography. speech equal and Freedom force public pornogra- press think, license the use not, does I politics business, commerce, phy in materials obscene government. result) (concurring in the concur with the J. —I Hunter, go majority, but further hold the would result Baby” to be under the film “Carmen definitions Ed. v. United Roth (1957). film, even to an Ct. 1304 That exhibition consenting in 9.68.010. violation RCW adults, would be following terms: in Roth in the We defined average contempo- person, applying
“[WJhether to the rary community dominant theme of the standards, the prurient appeals as a interest.” material taken whole U.S., definition, 489. Under this as elaborated subsequent cases, it must three elements must coalesce: (a) mate- be established that the dominant theme appeals prurient as a rial taken interest whole (b) patently sex; af- the material is offensive because it community relating contemporary fronts to the standards description representation (c) matters; оf sexual utterly redeeming material without social value. Book A Named “John Memoirs Cleland’s Woman of Attorney Pleasure” L. Ed. General, 413, 418, 1,2d 86 Ct. 975 appears
It that the third element of the definition has application caused confusion of this definition. problem.
I find no such The definition should consid- entirety. ered in its The third element should not be consid- *15 ered in isolation of the remainder of the the definition. If appeals prurient material, whole, taken as a the to interest patently in sex, and is offensive it because affronts contem- community porary relating representation standards to the matters, of sexual then or not whether the material is redeeming utterly value, without social should be deter- light contemporary in the standards minеd of the com- munity. community disagree some in a
Because there who contemporary opinion, and, in standards their with the redeeming to have some value, deem the material social from does itself remove that material the definition not obscenity. Baby” the film In the case “Carmen instant was exhib- indisputed It ited to this court. became evidence in the position in Therefore, this court is as case. favorable independent court to make a valued the trial judicial utterly as to this film determination whether is redeeming social value. without repulsive, pornographic erotic,
To detail the scenes that unnecessary dominate the entire theme of this film is opinion. majority unhesitatingly this state: necessarily persоnally film viewed and found it philosophical distasteful, social, and devoid or artistic merit. (Italics mine.)
Why opinion of then should the witnesses in the some modify opinion of this record of members court. To unqualifiedly usurpation would be allow their do so judicial function. must make the final determination as to
This court Baby,” undisputed film “Carmen evidence whether case, the Roth definition and comes within is ob- in this Unquestionably.the ap- of the theme scene. dominant judicial prurient peals can interest sex. We take community contemporary stand- that it does affront notice utterly any Applying it .standards, these is without ards. redeeming social value. equivocation, should,
This therefore without hold court any thereof, obscene, and even film is exhibition that the consenting statute, in violation of the adults, RCW supra. 9.68.010, result) (concurring have lin- J. some —I
Finley, constitutionality proce- gering as to reservations questioned seizing employed i.e., the lack dure film— hearing adversary obscenity. prior on I majority result reached concur in the nevertheless Baby” ground of the film “Carmen exhibition specific i.e., in a location unre- facts under case— by juveniles strictedly frequented fall within the —does protection first amendment to the constitutional my opinion, Furthermore, Constitution. United States *16 Baby” surrounding of the film “Carmen exhibition the facts finding pandering support a us case before in the actually appellant those minors who as to part the from film.2 is obvious the record that the It the viewed may exist, 2Pandering to as I understand the found relevant be exploited questioned “created cases, material is or when the federal viewing appellant attempt no of the made to restrict by immediately juveniles chain link fence. Such outside the appellant potentially to in inaction an economic benefit serving juveniles paying to customers attract to become juve- logically predictable and with a somewhat result the would, word-of-mouth, niles “free” attract customers paying additional customers. appears perhaps, majority
It
that,
to me
the
assumes too
applying,
possibly,
attempting
or,
much in
in
to
extend
application
approach
or
of,
contextual
variable
devel-
oped Redrup
in
York,
New
18 L. Ed. 2d
87 S.
Lederle,
Ct.
and Close v.
While and would approach appropriate the “contextual” in an case, as I read lacking any us, record before it is silent or as to com- plaints actually made area, motorists or residents of there to thus seems no that, fact, indication privacy any passing individual homeowner motorist was assaulted. Decisions of the federal area courts here involved me seem to indicate Amend- First rights proof ment cannot absent clear circumscribed rights nonconsenting an actual assault indi- vidual.
Finally,
foregoing,
appears
in terms of the
it
to me the
Redrup
may
misap-
rationale of
and Close
be somewhat
plied
following passage
majority opinion:
from the
right
homeowner
be free from the intrusion
entirely
appeal
prurient
basis of its
interests
.
.”
Ginz
.
burg
463, 474,
v. United
383 U.S.
Ed.
to the theater willing and films to a unwill- choose what he will exhibit ing audience. my appropriate feeling more
It is this statement would be complaints for this an action there had or were if been brought by particular offended This homeowners. nuisance my opinion, language cen- not, case does sustain in this proof upon the of actual assault sure of the absent specific privacy individual. I any stated, reasons concur event, by majority. reached
result J. J., concurs Finley, Neill, May 6, En Banc. 41740. 1971.] [No. Respondents, al., Metropolitan et Duane Nance Donald Appellants. al., et Corporation Transit Respondents, al., Metropolitan et Donald E. Nance Appellants. al., et Corporation Transit