*1 Brachtenbach, feel, however, statement, I C.J. perceived "When a clash between a defendant's fair trial right right speech arises, free have an courts duty try affirmative to to accommodate both inter- of those ests" should be clarified. public's right openly justice
Where the
administered
infringe
right
does not
on the defendant's constitutional
trial,
a fair
the above statement is a correct assessment of
responsibility.
Newspapers,
the court's
See Richmond
Inc.
Virginia,
L.
65 Ed. 2d
public's right
open proceedings
But where the
infringing upon
cannot be accommodated without
process rights,
defendant's constitutional due
the defend
rights
preserved.
ant's
quale,
must be
See Gannett Co. v. DePas
368, 378-79,
Ed. 2d
99 S. Ct.
(1979);
Publications,
Federated
Kurtz,
Inc. v.
(1980);
Newspapers,
51, 55,
Wn.2d
[No. 1982.] Respondent, v. R. N. Washington, State Appellants. Regan, al, et *2 appellants. Hoff, Victor V. for Prosecuting Attorney, Jeffrey Sullivan, and David W. C. respondent. Waterbury, Deputy, for employee Clinton, an of J. Michael Williams, (Center), Regan, Magazine and N. Center R. Yakima Center, president Distributors, Inc., which owns of J-R selling two obscene counts were convicted They appealed to the Court these convictions materials. 2.06.030(d) Appeals, RCW Division Three. Pursuant to Appeals We case to us. 4.2, certified the RAP the Court of those convictions. now vacate police purchased films two 8 millimeter officers
Yakima films, Lust" entitled "True Michael Clinton. These from Meat", for a war- Inches of became basis and "Sixteen magazine and seize "all films store rant multiple copies search films, all video cassettes offered Papers, Supplemental 22. Pursuant to that Clerk's sale". warrant, were made. and seizures the Center was searched purchases, subsequently
Clinton, of the two was because charged selling R. N. with two counts of obscene material. charged Regan, president Distributors, Inc., of J-R was possession plus intent to sell with the same two sales with product charges were the three other films. latter during films the search. three seized *3 pursuant Appellants argued that the seizure of evidence their Fourth the was an unlawful violation of to warrant rights, suppress seized evi- and moved to the Amendment purchased As the materials dence as well as the films. for pursuant granted warrant, the the trial court seized suppression it the warrants "did
motion because found that Sup- particularly property seized". not describe the be Papers, plemental 23. The trial court refused Clerk's at prior suppress lawfully purchased to the warrant. the films lawfully purchased films, con- On basis gross appellants of two sales obscene materials —a victed RCW under 9.68.010.1 misdemeanor 1RCW 9.68.010 reads as follows: "Every person who— sell, distribute, exhibit, "(1) Having knowledge of the contents thereof shall distribution, knowledge having thereof shall display or of the contents or sale book, any magazine, possession to sell or distribute in his with intent have film, pho- book, picture newspaper, writing, photograph, motion pamphlet, comic any picture, drawing, figure, image, record, tape recording, or nograph or wire 50
Appellants' primary is contention that our authori Washington's obscenity statute, tative construction RCW 9.68.010, Distribs., Inc., State v. J-R 584, 82 Wn.2d 512 (1973), unconstitutionally P.2d 1049 overbroad both on applies Although its face and as it to them. this issue was appeal, uniformly raised for the first time on we have they reviewed such issues when relate to some constitu right. v. Theroff, 385, tional State Wn.2d P.2d (1980); Lee, In 357, 363-64, 1240 (1980); re 95 Wn.2d P.2d Green,
State v.
94 Wn.2d
In J-R we an authoritative con- by incorporating 3-prong struction RCW 9.68.010 obscenity California, test of Miller v. (1973),
Ed. 2d Ct. 93 S. into the statute. so doing, guidelines we set out the Miller in full:
(a) person, average applying contempo- whether "the rary community work, standards" find would that the appeals prurient whole, taken as a to the . . . interest. (b) depicts describes, whether work in a or way, specifically sexual conduct offensive (c) applicable law, state whether defined the literary, work, whole, taken lacks serious artis- political, tic, or scientific value. (Italics ours.) supra Inc., Distribs., State quoting supra from v. California, Miller at 24. After the quoted above 9.68.010, authoritative construction RCW obscene; object thing or which is or "(2) Having knowledge performed of the contents thereof shall cause to be exhibited, performance show, act, engage any play, or shall in the or exhibition of picture obscene; dance or motion which guilty gross "Shall of a be misdemeanor. provisions apply scope "The section of this shall to acts done in the of his *4 by employment operator by picture projectionist employed a motion or the owner place manager pictures, showing or aof theatre or other the of motion unless operator picture projectionist the motion or has a in such financial interest thea- place employed performed tre or wherein he is so or unless he caused to be or performance picture knowledge exhibited such or motion and without the consent manager place showing." of the or owner the other theatre or following clarification, which the we state went on to us: in the case before of instruction 10 the basis became drawings portray pictures Photographs, patently in a and which way as ultimate sexual conduct such offensive perverted, simulated, or acts, or or actual sexual which normal cunnilingus, depict masturbation, fellatio, acts genitals the and sexual relations lewd exhibition of if, as a are "obscene" taken humans animals between literary, subject whole, a matter does not have serious the political, artistic, or scientific value. (Italics ours.) Although Distributors, at 601-02. we J-R way portrayal required of sexual conduct a that a "patently beginning quota- at the of the above offensive" only remaining language requires tion, that the the cunnilingus, masturbation, fellatio, exhi- lewd find "acts of genitals [or] relations between humans bition of the sexual portrayed in the films at issue. This does and animals" were comply the United with the standard articulated requires Supreme Miller, trier of States Court which "patently fact to determine that such acts are offensive" Thus, be our authoritative of RCW obscene. construction accurately in J-R Distributors failed reflect 9.68.010 guidelines, Miller even 1973. Since instruction 10 tracks language almost word for above from Distributors word, it from the same defect.2 suffers statutory
It a familiar rule of construction highest a has construed when statute once been part state, is much a of the of the that construction as court find that the sexual would acts entific value. obscene." 2Instruction "Material " "All "(a) "(c) (b) find conduct such as masturbation, fellatio, cunnilingus, The That three (Italics ours.) work, average person, applying work, is obscene elements must be average taken reads taken motion when: ultimate sex as follows: person, picture whole, whole, present applying depicts or lacks serious appeals acts, contemporary community before actual or lewd exhibition contemporary to the describes the material literary, prurient simulated, in a artistic, political community interest; may or which standards, be found to be offensive genitals; standards, depicts or sci- would way *5 52 originally Vly.
statute ifas it were written it. into Yakima Cy., 552, Bank & Trust Co. v. Yakima 149 Wash. 271 (1928). Department P. 820 See also v. Windust Labor & (1958). Indus., 33, 54-55, Wn.2d 52 P.2d 241 323 We must language therefore examine the in J-R Distributors determine if our authoritative construction of RCW 9.68 constitutionally appellants was, itself, .010 overbroad as the assert.
Addressing overbreadth claims serves the beneficial eliminating "chilling privileged function of effect" on rights, exercises of First Amendment whether or not the party challenging engaged privileged in statute has Button, 415, 432, conduct. NAACP v. 371 L. U.S. 9 Ed. 2d (1963). generally Note, 83 Ct. 328 See S. The First Doctrine, Amendment Overbreadth 83 Harv. L. Rev. 844 (1970). The J-R Distributors construction of RCW 9.68.010 proscribes only patently is overbroad it because not offen patently conduct, sive sexual but conduct which is not by contemporary community offensive as measured stand potentially ards. Since the statute reaches conduct is which protected, appellants standing challenge have the stat activity per ute's over if breadth even their within scope missible if the statute and even such constitutional applied overbreadth can be considered "harmless error" as Orleans, 133-34, to them. Lewis New 415 U.S. L. 39 (1974). However, Ed. 2d 94 S. Ct. 970 because conduct merely speech appellants here, and not prove is involved must only real, the statute's overbreadth but sub judged plainly well, stantial as in relation to the statute's legitimate sweep. Illinois, 767, 776, Ward v. L. (1977); Oklahoma, Ed. 2d Broadrick v. 601, 615, Ed. 2d 93 S. Ct. requirement We find the failure to include the patent in offensiveness J-R Distributors and instruction both real and substantial. The be erroneous construction language of RCW 9.68.010 J-R Distributors require instruction which fail to sexual be conduct to go offensive, to the heart of this case it is since undisputed fellatio, masturbation, cunni- acts of depicted lingus We cannot determine were the films. appellants selling jury obscene convicted whether simply "patently they offensive" or were materials because present any in the acts were the above sexual because they to find had films. The to instruct failure "patently depicted offen- in the films to be the sexual acts appellants they not have convicted means that could sive" standards of Miller minimum constitutional under the *6 States, Ed. 97 52 L. 2d Smith v. United 431 (1977). phrase the inclusion of S. Ct. 1756 Without "patently guideline offensive", an Miller's second becomes duty objective whereby jury is its relieved of standard contemporary community apply The Tennes- standards. recently Supreme the Tennessee Court invalidated see obscenity require sexual it failed to that statute because striking "patently In down be found offensive". conduct following: statute, that the court noted problem The with the Tennessee Act's definition clearly description sex, in a detailed that it means that per "patently any context, is se offensive." The result of eliminate definition would be to from consideration descrip by of fact the issue of whether or not a the trier portrayal, "patently etc., sex was or was not tion or offensive." prong Thus, definition nullifies second States, [v. The of the Miller test. Roth United (1957)] portrayal of sex Court made it clear that the 476 in itself, not, art, in and of and scientific works is literature deny protec first amendment sufficient reason to S.Ct. 1304. tion material. 354 U.S. at to such "patently offensive" is direct con- The definition of upon Miller, federal and Roth and encroaches flict with press guarantees speech is con- freedom of state stitutionally infirm. Ass'n, 582 S.W.2d American Booksellers Leech v. persuasive (Tenn. 1979). authority We find the above resolving as RCW fail- issues before us 9.68.010. they properly find the must instruct the ure to question depicted films in to be in the conduct sexual "patently error. constitutes reversible offensive" therefore
Since the time of our
Distributors,
decision
Supreme
the United States
Court has extended the
requirement
applying contemporary community
stand
prong
ards to the second
of the Miller test. Smith v.
supra
States,
purport
United
at 300-01. Smith did not
change
guidelines,
sup
Miller's
as it cites Miller itself for
port
guidelines.
of its clarification of the
Smith,
Miller
accept
301. We now
the Smith clarification of Miller's
guidelines
logical development
holding
of the Miller
incorporate
part
it as
of our authoritative construction
Washington's obscenity
statute. Other courts have acted
in a similar fashion. See United States v. Various Articles
(2d
1979);
Merchandise,
Obscene
600 F.2d
Cir.
Bartanen,
State v.
454, 460-62,
Ariz.
As clarified above, our we now restate our authoritative construction of RCW 9.68.010 as follows: *7 (a) average person, applying contempo- whether "the rary community taken work, standards" would find that the appeals prurient whole, to the . . . interest. (b) [applying contemporary whether those same com- munity average person standards the would that] find depicts patently describes, the work in a offensive way, specifically appli- sexual conduct defined (c) law; cable state work, and whether the taken as a literary, political,
whole, lacks artistic, serious or scien- tific value. supra quoting Distribs., Inc.,
State v. 594, J-R from supra v. California, Miller addition, at 24. In we now take opportunity language this to correct the of our elaboration guidelines of the Miller as in stated the J-R Distributors case:
Photographs, pictures drawings portray and in which a
55 way as ultimate such sexual conduct offensive perverted, simulated, or acts, normal or actual or sexual which depict masturbation, [patently offensive] acts of genitals cunnilingus, and of the fellatio, lewd exhibition are and animals relations between humans sexual subject whole, if, matter does "obscene" taken a literary, political, artistic, or scientific not have a serious value. supra jury Distribs., Future Inc., v. at 601-02. State should reflect these clarifications. instructions closely assignments error We have examined other appellants them be without and have found raised properly failing Nevertheless, merit. due to the error patent offensiveness, we must vacate instruct the as to appellants and a new trial the convictions of remand for upon construction of RCW based our latest authoritative opinion. 9.68.010,as set in this out JJ., concur. Stafford, Rosellini J. Utter, (concurring) reasoning concur with the —I following majority, only result of the and would add admonition. may,
Although
Distribs.,
we
as we did in State v. J-R
(1973),
Inc.,
584,
82 Wn.2d
Miller Pinkus and its States, Ct. U.S. 56 L. Ed. 2d 98 S. United (1978); States, Smith United (1977); Hamling v. United (1974)) 2d Ed. States, 41 L. 2d 94 S. Ct. Ed. legislature, proper fact, trier roles of delineate appellate court. *8 depicted
Although the sexual conduct Miller stated that regulated specifically or described works "must be by applicable defined law, state as written or authorita- tively construed", Miller, the case did not mandate legislative cataloging, that courts would assume the role of modifying, updating type regulated of conduct obscenity prong under laws. In the second of Miller's 3- part guidelines, spe- the court referred to "sexual conduct cifically applicable pro- defined law," state and in viding examples specific of such definition the court looked (Italics only mine.) to state statutes. Miller, at 24 & n.6. types While the Miller court did discuss the sexual con- might regulated, duct that be so its discussion was limited (Italics mine.) to what a "state statute could define". Miller, at 25. provided necessary
In Distributors, we constitu- specificity Washington's very general obscenity tional doing guided by so, law. we were sense", "common legislative public hearings. years edict or In the 8 since J-R given Distributors, legis- we have been no indication —save lative silence—that our intuition in that case reflected what Legislature prohibit through intended to enactment of RCW before, 9.68.010.As we have stated legislature following judicial
the failure of the to act con- struction of a statute does not forever bind the court perpetuate poorly judicial either a reasoned conclusion an error.
Jepson Department Indus., Labor & 89 Wn.2d 573 P.2d
Although saving our construction in this case is constitu- tional, Illinois, see Ward v. 52 L. Ed. 2d (1977), shepherdship I believe our continued Washington's obscenity beyond law in this manner lies pale proper judicial function, of our and that further changes Legislature. in definition should be judicial responsibility
This would not dictate that
obscenity
ended in the
arena.
State v. Princess Cinema
Cf.
(1980)
Milwaukee, Inc.,
96 Wis. 2d
At the same neither trier of fact nor the permitted proceed with should be to unbridled discretion. regulation depictions We must ensure that descriptions is limited to or conduct, Miller, of sexual at of the "hard variety.3 Hamling, Smith, 301; 114; Jenkins, core" at at at prong— 160-61; Miller, addition, at 27. Miller's third literary, whether taken as a whole the work lacks serious political objective artistic, scientific value—is an crite- or may rion which we review the trier of fact's discretion in 3Although might complain legislative prerogative one restriction of to regulation depictions descriptions par of of "hard core" sexual conduct itself legislative part, takes of a intrusion on our such a criticism would be miscon ceived. The limitation as to "hard core" sexual conduct is a constitutional legislative regulation public portrayal Where is not limited to "the limitation. sake, ensuing gain," commercial hard-core sexual conduct for its own for the nudity, Miller, scrutiny required. Regulation simple our constitutional concerns, example, implicate First Amendment and it remains our for would Miller, "independent responsibility review of constitutional claims." to undertake discussion, Legislature may Notwithstanding still choose at 25. the above activity types regulation regulate hard core of hard core or limit its certain Smith, accessibility. Without a terms of See at 303. material to children or to quandary Legislature, specific pronouncement in a as to this court is left scope of RCW 9.68.010. Smith, finding a work obscene. at 301. area regulating
I the task of this would submit system if each branch our will become less difficult appropriate role appropriate its role. Our justice maintains laws, interpret legislate not to them. in this area is to Indus., Labor & 89 Wn.2d Department Jepson See 394, 405, P.2d obscenity regulation was 3-prong
Miller's test for and not as a substitute guideline states intended legislation. Although RCW 9.68.010 comprehensive construed, I the future would presently constitutional would saving statute if such construction not construe the the kinds of sex- us continue to about require conjecture *10 under the second regulate the statute seeks to ual conduct must still define legislation Miller test. "State prong of the regulated will be the State." kinds of conduct that States, 2d Ed. Smith v. United proper Legislature The is obscenity scope of its statute. body to define the intended J., concurs with Utter, J. Dolliver, this court's (dissenting) agree J. Dimmick, —I Inc., Distribs., in State v. J-R construction authoritative (1973) may have been constitu P.2d 1049 Wn.2d however, petition I cannot tionally agree, overbroad. remanded vacated and the cause ers' convictions must be the films that a upon viewing It clear a new trial. the words by the omission of be misled juror would not instruction where section of the offensive" one "patently that same instruction. part in another they appear did error constitute reversible technicality should not This Ste oft-quoted statement of Justice The the instant case. it," when I see that "I know it pornography in defining wart 184, 197, 12 L. Ed. 2d 84 S. Ohio, v. Jacobellis J., apt here. (1964) (Stewart, concurring), Ct. 1676 Dimmick, Dore, J., C.J., concur with Brachtenbach, J. February En Banc. 1982.] 46950-4.
[No. Appellants, al, Curtis, et Irene Leiloni City Seattle, Respondent.