*1 Judgment affirmed. Prentice,
Arterburn, DeBruler, JJ., J., C. Givan and concur. Reported in 273 E. 2d N. 543. Note. — v. State
Allan Stroud Indiana. Filed October 570S107. [No. Rehearing 20, 1971.] December denied *2 Miroff, Indianapolis, Franklin appellant. of for Sendak, Attorney General, Theodore L. Carmody, John T. Spencer, General, Frederick R. Deputies Attorney ap- for pellee. August 21, 1969, appellant C. J. On was
Arterburn, charged by indictment with the offense of Sale Obscene Appellant Literature. quash indictment, alleging moved to based, “that on the statute action which this was Acts 1, p. (Burns ch. 10-2803) unconstitutionally sec. vague provides censorship and for constitutional and invasion privacy.” motion, whereupon, The trial overruled the court guilty, waiving appellant plea jury entered of not trial. January 21,1970, guilty appellant On court found and fined him hundred one dollars costs. [$100.]
Appellant propositions alleged error, sets forth four presents issues consideration, which in three for our substance they follows: are as
(1) 10-2803, infra, Ann., Whether Burns Ind. Stat. sec. which, alia, provides inter it to sell criminal offense literature, obscene is unconstitutional on its face.
(2) infra, Ann., 10-2803, Whether Burns Ind. sec. Stat. applied is unconstitutional of this case. facts sup- (3) presented sufficient to Whether evidence finding appellant’s guilt beyond port the a reasonable doubt. Ind. appellant’s We will first Burns consider contention that Ann., Ap 10-2803, Stat. its face. sec. unconstitutional
pellant premise bases this contention on the rights statute; (1) Amendment is violative of his First convey speech press, (2) freedom fails adequate description prohibited of the evil intended to subject person ordinary comprehension so that him part can render liable law know what conduct on his will penalties, regard, to its and further that it is so broad permits arbitrary prosecution it proscription, under its *3 process in violation of the due clause of the Fourteenth Amendment to the United States Constitution. With these agree. First, appellant’s urging cannot contentions we as to Ann., 10-2803, infra, Burns Ind. Stat. sec. of violative rights speech press, his First Amendment of freedom of contention, obscenity is no merit to the as there has never protection of the been afforded the First In Amendment. Roth v. United States 77 S. Ct. unequivocal language L. Ed. stated, hold that is not within the “We area of con (354 press.” stitutionally protected speech 485). or U. S. at Campbell 256 Ind. 271 N. E. 2d In v. State regarding rights, an individual’s First Amendment we observation. made this expression, guaranteed by free “The Amendment of the First right) States, Constitution of the to the United corollary exists rights unitary portion group of a of each but only exercised to the extent that can such does of which States, others. upon or erode the within
not encroach pro- equal imposed by process due limitations to the requirements Amendment Fourteenth tection of the regulate may States, and restrain of the United Constitution insuring thereby expression, exercise of freedom of the to rights of abuse exercise all the freedom from including right expression.” others, free Ann., supra, summary, not violate Burns Ind. Stat. does light Rights, the fact that appellant’s First Amendment right rights has are not and the .State these absolute rights, regulate these to restrain and the exercise health, public police power, protect under its safety public order, public public welfare. public morals, or Dept. Ind. Homley et al. v. State Conservation 326, 123 N. 2dE. Ind. Burns appellant’s consider contention
We will now it fails Ann., 10-2803, because unconstitutional Stat. sec. warning proscribed convey sufficiently definite understanding prac- measured common conduct when provides: Ann., 10-2803 Burns Ind. Stat. sec. tices. — Circulation, and devices literature “10-2803. Obscene — knowingly
possession, or sells Whoever manufacture. give gives way, lend, lends, away, or offers to sell or or or offers possession, any has in his manner exhibits or or give any away, ob- sell, lend or intent with or book, pamphlet, paper, scene, lewd, lascivious indecent or daguerreotupe, engraving, drawing, lithograph, picture, instrument, model, cast, or photograph, stereoscopic picture, use, or article immoral or instrument of indecent or article for procuring for abortion, self-pollution, or medicine procuring or for them, any abortion, same, or or advertise handbill, letter, circular, sale, any prints or or for writes any kind, book, card, or pamphlet, or notice advertisement where, stating when, how, orally, gives information lewd, any obscene, means, inde- or of whom what things, hereinbefore mentioned articles or lascivious cent or *4 ob- presented or borrowed, otherwise purchased, can be knowingly manufactured; manu- or whoever tained, are or exposes, any draws with intent to sell or factures, or draws or things, shall be sold, prints such or or articles have twenty nor more than dollars less than [$20.00] not fined one may added [$1,000.00], to which dollars thousand p. than one imprisonment colleges, gist strued 70] practice in their to affect (Emphasis or the [1] legitimate for year; regular practitioners publication teaching not less added) but business.” [Acts nothing than of standard regularly twenty in this [20] medicine or chartered medical act shall be con- days ch. books, nor more medical sec. 1 drug- or appel emphasized portion It is the the Statute which urges convey adequately description lant of the evil fails obscene, lewd, words, prohibited.
intended to be These convey descrip lascivious, adequately indecent and do opinion prohibited. Our tion of the evil intended to be supported by decision is Court’s the United States Ct. 476, 77 in Roth 354 U. S. United States wherein, fol made the the Court Ed. lowing allegation regarding that observation and statement the two unconstitutional be statutes therein were involved they “reasonably provide ascertainable stand cause failed to guilt.” clearly question ard of answers the The Roth decision presented here. argued provide reasonably “It is that the statutes do not guilt ascertainable standards of and therefore violate the requirements process. constitutional Winters New due York, 92 L. Ed. S. Ct. 665. The fed- obscenity mailing eral punishable statute makes ‘obscene, lewd, lascivious, filthy that or ... publication other statute makes anof indecent character.’ The California alia, keeping punishable, inter for sale or advertising material is ‘obscene or indecent.’ The argument thrust of is that these words are not suffi- ciently precise they thing not because do mean the same people, time, everywhere.” to all all the U. S. [354 491] “Many recognized decisions have these terms of precise. Court, however, are not statutes This consistently precision lack of has held that itself requirements process. of due . . offensive ‘. [T]he require standards’; impossible does not all Constitution language ‘conveys required sufficiently is that warning proscribed conduct when meas- definite understanding practice .’ common . . United ured Petrillo, 7, 8, 1877, 1883, L. Ed. States *5 words, according applied 1538. These to the judging obscenity, already discussed,
proper standard for proscribed give adequate warning the conduct and mark sufficiently judges juries distinct for ‘. . . boundaries may fairly administer law . . there the . That be mar- ginal it is difficult to cases which determine the side of the line
*[354U. S.492]
particular
fact situation
is
*which
falls
no sufficient
tq
language
ambiguous
hold the
too
reason
define a
added;
[Emphasis
criminal offense . . .’”
mean simply constitutional,” quite means there was insufficient it joint appellant’s final con- this reason we evidence. For point sufficiency beginning, we question. in one tentions determining supported a verdict is whether that when out light of the rule evidence, must do so in this court sufficient weigh evidence nor resolve the that, will not this court most credibility, look to the evidence questions but will inferences there- reasonable and the State favorable *6 jury. support of the trial court or the verdict from which 727; (1971), 40, 2d 257 Ind. N. E. Washington v. State 63; (1971), 256 Ind. 267 N. 2d Grimm E. Davis v. State 407; Sharp 150, 258 N. E. 2d v. State 254 Ind. (1970), State 593; (1970), Smith , 260 N. E. 2d v. State (1970) 254 Ind. 558; Langley E. 2d and v. State 260 N. 254 Ind. affirmed, A conviction must be E. 2d 611. 232 N. 250 Ind. value, rule, probative having applied the there evidence of if reasonably could infer that the the trier of facts which from beyond guilty a reasonable doubt. Gann v. State appellant was 381; , 2d Asher State (1971) 256 Ind. N. E. 25, 244 E. 2d 89. 253 Ind. N. looking the State, to most
Before evidence favorable to the point out that essential we the elements of the offense Selling Literature, provided Obscene for in Burns supra Ann., (1) sale, (2) Ind. Stat. are of obscene literature. following- presented prove the
The State to evidence the “sale”, required element of a the Statute. The State’s witness, Indianapolis Officer, gave Broeking, Charles Police testimony regarding following Broeking the sale. Officer the entering The Adult Bookstore, his told of where first the employed magazines to censor and sell appellant other purchased that testified he a newspaper He further articles. fifty appellant for from the cents. From Officer SCREW testimony clearly Broeking’s there was sufficient evidence to
2Í1 support the conclusion trial the court there awas only remaining question sale. The and real before us is considering whether the sale was of obscene literature. light judging issue must so in we do standards for the obscenity espoused by Court of United States. question obscenity of whether anwas utterance within protection guaranteed by speech press, of free States, First Amendment to the Constitution of United presented was first United States Court Roth v. United States 354 U. 1 Ed. S. light Ct. 1304. In Roth Court held that
77 S. “In history, apparent phrasing . . . it is the unconditional every protect the First Amendment was not intended to utter- Further, ance.” at “. the Court held . . [354 483]. constitutionally protected within area of speech press.” pro- then U. S. [354 485]. following judging approve for ceeded standard ob- scenity : average person, applying contemporary “Whether community standards, the dominant theme appeals
taken as a interest.” whole [354 at 489] *7 Enterprises, years Inc., Day later in Manual Five et al. v. 639, 370 U. S. L. Ed. 2d S. Ct. Court narrowed the broad standard set down in Roth and said regarding question alleged in the material therein to be obscene: lacking magazines “. . . find these an element [W]e ‘prurient interest,’
which, than no less essential to a valid obscenity magazines . of . . These determination cannot be deemed so offensive their face as to affront current com- decency quality munity of that shall standards we here- —a ‘indecency.’ ‘patent offensiveness’ or after refer to Lack- magazine quality, legally ing cannot be that deemed ‘obscene’, S. at . .” 482] . [370 considering Appeals mistaken in Court of was “The appeal ‘prurient Roth interest’ the sole test of ob- made scenity.” at 486] [370 Enterprises, Day, supra, Thus, Manual Inc. v. mate- after the “prurient appealed to interest” in- rial which alone was offensive”, “patently sufficient, as to it also had affront community decency. point of current standards At this it court in Roth still clear what the meant “commu- was not question clearly nity but standards” resolved 378 U. S. Ct. Jacobellis v. Ohio 793, where the court stated: L. Ed. 2d tion of the the standards of the the nity U. S. at 192] “It case arises. standards’ has been constitution aspect This is an incorrect suggested particular question the Roth ¤ [*] local [*] test obscenity reading community ‘contemporary implies in each a determina- Roth.” from which commu- case [378 position taken in thus reaffirm Roth to the effect “We allegedly constitutional status of that the must obscene work basis of national be determined on the standard.” added, [Emphasis 378 U. atS. 195]. ‘John Cleland’s Memoirs A Book named Woman Attorney Pleasure, al. General et Commonwealth 16 Ed. 2d Massachusetts actually the Roth reformulated standard and the Court following criteria, as seen a third statement: added following in Roth in defined “We terms: average person, applying contemporary ‘[W]hether community standards, the dominant theme of the material appeals prurient S., as a whole interest.’ 354 U. taken 489, rated it material sex; definition, 1509. Under 2d at 1 L. Ed. elabo- cases, subsequent three elements must coalesce: (a) the dominant must be established theme of the appeals as a whole to a taken interest patently (b) the material offensive because it af- community contemporary relating standards to the the fronts representation matters; of sexual description (c)
213
utterly
redeeming
material
social value.” [383
U. S. at 418].
important
observations,
Court also made other
which we
First,
note.
the Court noted: “Each of the three federal con-
”
stitutional
applied independently;
criteria is to
.
. .
[383
Second,
U. S. at 419].
the Court held that
. the circum-
“. .
production,
sale,
publicity
stances of
are relevant
determining
publication
whether or not the
or distribution of
constitutionally protected.”
the book is
U. S. at
[383
420]
significant
point
cases,
This latter
was a
issue in two later
Redrup
767, 18
515,
(1967),
New York
L.
2d
v.
386 U. S.
Ed.
Ginzburg
et
v. United
al.
States
942;
Ginsberg
also,
Ed. 2d
86 S. Ct.
see
New York
2d
Ct.
U. S.
L. Ed.
88 S.
1274, where the
involved was
in violation of a
sale
to minors
closely
Also,
point,
New York
related to this
statute.
Mishkin New York
16 L.
Court in
Ed.
realities to be assessed in terms of the sexual interests of its intended and of material recipient group probable . . .” [383 509] foregoing judging discussion, From the standard for ob- developed by scenity, of the United States, supra, subsequent Roth United deci- States sions, is as follows:
(1) taken as a The dominant of the material whole theme sex, assessing appeals terms of the sexual to a interest such in prob- interests intended and of the material; recipient group able patently (2) offensive because it affronts The material community relating contemporary description regard standards matters, reproduction of sexual in this contemporary must affront national particular standards of than the rather standards arose; community case from which the *9 redeeming value, (3) utterly social The material is literary, whole, is, sci- that when taken as it has no a importance. any entific, artistic or form of social other a Supreme has never made Court of the States United “utterly defining with- clear words statement its use of the a mini- clear, however, presence of out”. It is mere that the place socially redeeming cannot mum amount of substance First protection of the obscene material the otherwise within literary Lords page poetry or the Amendment. One value Prayer, placed pages hard core in midst of numerous the publication pornography non-obscene cannot render entire a bring protection, purview it within the of constitutional meaning- contrary proscription conclusion would render the redeeming must Thus, “utterly value social less. without” weighed value. whole, material is of no social mean as a urges Appellant decision of the United that States Georgia Stanley U. S. Court “leads the conclusion Ed. 2d showing allegedly mate- mere distribution or obscene material to minors or to rials without intent to distribute the upon the material in such manner to intrude distribute or, general public, put privacy another or of the sensibilities individuals, thrusting unsuspecting way, off on the materials constitutionally appellant punishable.” In effect not substantially urging Stanley Roth and other overruled it, this, appellant is in error. cases decided under Stanley Georgia, supra, that “the held making prohibit Amendments mere Fourteenth First and S. private possession of obscene material crime.” U. [394 say, on to “Roth and the However, the Court went at 568]. impaired by today’s following not that decision are cases States Reidel holding.” at United 568]. [394 L. Ed. 2d 402 U. 91 S. Ct. sustaining reversing the lower Court’s of the Supreme Court ground Stanley on the motion to dismiss defendant’s delivery constitutionally protected material, made of obscene significant this observation: express ignored District Court Roth and the “The both Stanley Relying reach limitations on the decision. Stanley protects the statement that ‘the Constitution
right regardless of receive and ideas . . . information worth,’ S., 564, 22 at L. Ed. 2d their social right judge person that ‘if has the to receive trial reasoned right material, possess this then someone must have to him.’ He concluded that 1461 could to deliver it validly applied § not directed at obscene material ‘where unwilling children, public, where it is not directed at an . is solicited adults . material such case sweep. gave Stanley To too wide a “The District Court Stanley’s right peruse extrapolate from have and obscene privacy his Amendment own home First in the *10 effectively right him would scuttle Reidel to it to sell Stanley opinion abjured. Roth, precise result that the the ‘right scope to receive’ referred to the Whatever dealings Stanley, it not so broad as immunize the is dealings engaged which in which Reidel here — unprotected the First Amendment.” [28 Roth held 2d at 817] Ed. urging appellant’s the deci merit to that Court's find no
We Stanley Georgia, supra, affected the Roth decision sion in it. decided under cases since and those material sold turn to determine whether the will now We prove was obscene. To appellant in the instant case the literature,” the appellant “obscene State had sold is, admitted, evidence, best court offered obscene, newspaper named alleged SCREW. to be completely the full impossible to describe in detail It is SCREW, publication pages of twenty-eight content of publication alleged The contains some obscene. herein women, men and some which of nude forty photographs organs photo- such each sex. One expose the sex completely standing, man is One the other nude men. portrays two graph legs. his head his between feet with sitting his genitals fully exposed. of each photograph are appears as an concerning illustration with an article the liberation of dealing homosexuals. There numerous are articles with vari- topics ous all of which in some manner are tuned to the leer example the sensualist. titled, An is an Horny article “The Armadildo.” The article discusses device called a “Duo device, rubber, designed Stimular”. The made to be worn genital, multiply intensify the male female excite- ment in sexual top partic- intercourse. The one-half of this page, however, suggestively ular illustrates another use of the photograph is a holding device. Shown lifesize of two hands partially peeled banana with attached “Duo Stimular” fit into position. There are also numerous dildoes, advertisements for films, photographs paraphernalia. and other such similar pages personal There are mostly two advertisements solicit- ing partners including for various sexual acts intercourse and sodomy. not, go purpose here, We need for the further into publication, only point we content out that re- briefly mainder the content of the same character as illustrated above.
Appellant specific prove offered no evidence to here, SCREW, newspaper any in issue socially was of re deeming value, although, permitted he was to use “expert” attempt witnesses to establish that the publication point obscene. We out that such testimony appears opinion improper. to be The determina publication tion as whether was obscene was the ulti *11 testimony Expert in issue. proper mate fact is never when give opinion expert called to as is to the ultimate fact by issue, such is to be determined the triers of the fact Further, expert testimony permitted expertise is alone. when knowledge particular expert required in a or area is because ordinary experience would be unable to men of understand or permit particular experts comprehend give a matter. To opinion as to material their whether obscene a case of clearly permitting experts give is as erroneous this sort negligently in defendant acted opinions as to a their whether 324, negligence Ind. Hamrick State case. 3; McCoy v. General Glass E. N. Corporation Briney 473; v. Williams App. Ind. 17 N. E. 2d 132; see also App. 242 N. E. 2d 143 Ind. I.L.E. Evidence 253 and §§ summary, appel sustain the the evidence is sufficient to finding (1) that,
lant’s conviction and the trial court’s by SCREW, newspaper sold theme of dominant inter appeals appellant, taken as a whole assessing inter sex, the sexual in terms of est in such recipient group probable ests of the intended and appellant material; SCREW, (2) newspaper sold contemporary na offensive, it patently because affronts relating description reproduction tional standards SCREW, matters; newspaper sold (3) the of sexual redeeming We social value. utterly appellant, newspaper court, trial hold therefore, did the by appellant SCREW, is obscene. sold Judgment court is offirmed. of the trial Hunter, J., result; Givan, concur, concurs in Prentice, JJ., opinion. DeBruler, J., dissents with
Dissenting Opinion weekly of a case arises out a sale J. This DeBruler, place newspaper “Screw” to an adult which took entitled pandering or of is no evidence of There inside bookstore. unsuspecting unwilling thrusting or on an such Quite contrary, juveniles. public, the involvement from attempted products its obviously to shield this store discourage the windows), (curtains on the public view specifically requirements), (entrance fee browsers casual entering the store. juveniles from prohibited objections to this conviction. four appellant raises (I.C. obscenity statute Indiana that the objection is first *12 218 being
35-30-10-1, 10-2803), is on its Burns unconstitutional § argument analysis face. This part an historical relies overly demonstrate that in an statute could be read re- arbitrary way. reading strictive or However, the statute must, incorporate we interpretations Supreme area, of the United States in this it is clear statute is constitution on (1957), its face. Roth U. S. U. v. 354 S. 476, 1304, Wise, Henley 77 S. 1 Ct. Ed. 1498. See also Supp. (N.D. 303 Ind., 1969). F. Div., 62 Hammond Appellant’s argument question second is that the statute applied. position unconstitutional Appellant takes the that under rulings Redrup New Court’s (1967), York S. 18 L. Ed. 2d 87 Ct. Stanley Georgia 542, general prohibition L. Ed. 2d of the distribution of consenting obscene materials between adults is unconstitu- tional, any prohibition and that Redrup must meet limited tests, which concern specific with themselves state interests protected by which override the interests the First Amend- argument, although ment. This it has merit considerable as a general approach area, to this support lacks constitutional since the United States Court’s decision in U. S. v. Reidel 91 S. In Ct. 1410. that case the court stated squarely placed obscenity has “[R]oth and its distribu- tion reach they outside the of the First Amendment and re- today.” Thus, main there Id. at 1413. there is no constitu- application question tional bar to the of the statute in to a “private” sale of obscene materials between adults. objection appellant’s periodical third is that according question is not obscene to constitutional standards. considering objection, upon we are called and cannot making independent judgment avoid of “an constitutional on the facts of the as to case whether the material involved constitutionally protected.” Jacobellis v. Ohio 84 Ct. L. Ed. 2d 793. S. complete agreement I am in of this Court with the rest vulgar periodical question representing verbal trash However, ques- pictorial pollution kind. the worst *13 publication in is obscene tion before the the Court is whether sense, layman’s In decid- sense. the constitutional not the guided necessarily by ing question the United are we role in this Supreme an active has taken Court which States study the of cases decided A sensitive constitutional area. struggle to the Supreme that Court indicates United States obscenity much more has been at a clear definition of arrive that application of for than the actual difficult the court fact, cases of specific a matter the to instances. As standard con- has allowed a in which the United States obscene, the material to on the basis that viction stand put the United more, virtually To are non-existent. without proper area in in this Court’s decisions States briefly development necessary context, to discuss the it will be obscenity. of definition determining starting proper definition of point for recently supra, obscenity S., re is, course, U. of Roth clearly supra. held Reidel, The Roth case affirmed U. S. Four- “obscenity” protected First and States, of the United to Amendments the Constitution teenth generally accepted prior to Roth. position had been which it Roth: put As the Court redeeming slightest im- having social even “All ideas ideas, ideas, even ideas
portance hateful controversial —unorthodox opinion full prevailing climate of —have they guarantees, excludable because protection unless of important interests. upon area of more the limited encroach history is the implicit of First Amendment in the But redeeming utterly obscenity social rejection as importance.” 854 U. at 484. impor- fundamental re-affirmed the Roth case course this area con- protection in and Amendment First tance of cluded that: “It judging is therefore vital for the standards
obscenity safeguard protection speech freedom press for material which does not treat sex a manner appealing prurient interest.” U. 488. S. at rejected Roth obscenity the well-known Hicklin test for being QB overboard, Regina, see LR 3 Hicklin obscenity, is, substituted a much for narrower test average community “whether person, applying stand- ards, the dominant theme the material taken a whole appeals prurient interest.” S. at
The Court place commented sex the First protection Amendment as follows: “However, synonymous. sex and are not Ob- scene material is material which with in a deals sex manner appealing Sex, great mys- interest. . . . life, terious indisputably mature force in human has been subject absorbing a ages; through interest to mankind *14 problems it is of one the vital of human interest and problems, concern. As all such to this Court said in Thorn 88, Alabama, Ed. 101-102, hill 310 v. State of U. S. 60 S. Ct. 744, 736, 84 1093: “ guaranteed speech press ‘The of freedom and of the liberty the Constitution at embraces the least the truthfully publicly public discuss all matters con- of previous cern without restraint or subsequent fear of ” (Original punishment.’ emphasis.) 354 U. atS. 487-488. distinguishing protected interest sex from a non- obscenity,
protected interest Court that: stated significant perceive no “We difference between the mean- ing obscenity developed in the case law of and the definition Code, (Tent. Model Penal §207.10(2) of A.L.I. Draft 1957), viz: no. “ thing if, whole, A . . obscene considered as ‘. its appeal i.e., predominant interest, is to a shame- sex, nudity, excretion, or ful morbid interest it in if beyond goes substantially customary limits of candor ” representation description as of such matters. . . .’ 487, fn. 20. at U. S. be Moreover, of material will this restrictive test what protection has Amendment of First deemed outside subsequent Roth. further in decisions even been narrowed Day (1962), Enterprises, Inc. S. In Manual an ob- the Court reversed 8 L. Ed. scenity case involv- under 18 U.S.C.A. conviction § published parties ing magazines admitted were all which “prurient appeal interest” primarily for homosexuals any had other merit of kind. group no and which that “pa- male was not representation of nudes held that Court magazines offensive,” cannot be tently is that “these that to affront current commu- face as their deemed so offensive decency,” regardless 370 U. S. at ity standards they readers, prurient appeal to the unless of their obvious patently prohibition sense, their offensive in this were also squared First Amendment freedoms. be with Justice could not pointed speaking Harlan, for the Court out that: Appeals considering “The was mistaken in Court appeal ‘prurient Roth made interest’ the sole test of ob- Reading scenity. dispensing requisite case as with the only portrayal patently would be offensive incon- background, and its common law with but sistent § tighten keeping purpose with Roth’s evidence out obscenity standards.” supra, Ohio, Later, Jacobellis v. its reiterated recognition that material in Roth can excluded from con- only utterly protection if it is found to be stitutional Finally, redeeming importance. in A Book Named social Pleasure v. Attor- a Woman Memoirs “John Cleland’s ney (1966), 383 U. Massachusetts 86 S. Ct. General of *15 stated the Court what has become Ed. majority, distinguishing dominant, if not standard for mate- constitutionally prohibited can be obscene. rial which Supreme case, reversed the Judicial the Court holding book, commonly known as Massachusetts Hill”, obscene. The Court held that “Fanny follow- ing independently necessary three were jointly elements and prohibition sufficient conditions for the of materials as ob- : scene “(a) the dominant of the material theme taken as a whole appeals sex; prurient (b) contemporary to a interest the material is patently it offensive because affronts com- munity relating description representa- standards or matters; (c) utterly
tions of sexual redeeming without social 383 U. value.” S. at 418. And the Court further stated that: holding “The Judicial Court erred in that a book ‘unqualifically need not be worthless before it can be deemed proscribed obscene.’ A can be book unless it found to utterly redeeming be social is so value. This even
though possess requisite prurient the book found appeal patently Each offensive. of the three fed- applied independently; eral constitutional criteria is to be against weighed social value the book can neither be prurient appeal patent its nor cancelled offensiveness.” (Original emphasis.) S. at 419. explicitly The Court thus added a third test which had been implicit previous decisions, in its and held that even if a work appealed interest, patently and was offensive, might protection it still claim constitutional if it had even a modicum of social value. development
The historical the U. S. Court’s obscenity continuing test for thus demostrates a delimitation of materials deemed obscene and therefore outside the limits protection. time, At of constitutional the same we note a corollary expansion of the standard to include the actions of opposed in relation to the material as considering seller may speak material alone. Actions in this area well louder Ginzburg v. U. S. than words. See Ed. 2d 86 Ct. 16 L. development of this historical standard also great deal of confusion opin-
demonstrates difference in *16 regarding guide meaning nothing ion the of the test. With us but the verbal definition we would but little advanced in attempt necessary judgment an to make the constitutional in Fortunately however, decision, Supreme this area. for our linguistic Court has enunciated this standard and absolved dealings contrary, itself of further in this area. On the pointed above, applying out has taken the lead Court “making independent has involved itself in the test and judgment the facts of the as to whether constitutional on case constitutionally protected.” 378 U. involved S. looking specific applications of this announced stand- Memoirs, supra, guided by Redrup, set forth we are ard as (in important supra, recent most case the sense of its law) Redrup, in this practical on the area. In effect the Court separate state convictions three under considered two which were similar to the laws, the first case before us. Redrup, plainclothes bought a case under officer In the first (“Lust Agent”) Pool” and paperback books “Shame from two City. In case, in New York the second a citizen newstand magazines (“High Heels” purchased “Spree”) two from Kentucky. Both were newstand-bookstore sellers con- prohibiting selling laws under state of obscene victed by third case concerned a decision The materials. declaratory judgment upholding a Arkansas cer-
Court magazines obscene. were tain originally granted States United cer- particularized questions cases to decide these three on
tiorari hypothesis that the material upon was in fact ob- lawof cases attacked the lack of a The first two “Scienter” scene. clerks, the sale and the third case on requirement “vagueness” “prior restraint” in the Arkan- an attack Redrup York, supra; New Austin procedure. See sas (1966), 384 U. S. S. Ct. 16 L. Ed. 2d Kentucky 384 U. 438; v. Arkansas Gent 2d 537. L. Ed. granting
However, assumption that on the after certiorari obscene, benefit were fact the materials per argument point, curiam on the the Court in or oral brief joined justices, seven out of nine decided decision question original materials in were ob- hypothesis that Court, therefore, to the merits of went scene was invalid. obscenity question each and held that none case *17 obscene. material was Redrwp strongly implied the Court had that decision in
The removing giant step itself from yet in another decided to take con- sale between when the in the area censor the role of pointed out: senting As the Court adults. there a claim of the cases was that the statute “In none specific and limited state for question reflected a concern Massachusetts, Commonwealth of 438,
juveniles.
Prince v.
See
645;
158,
88 L. Ed.
Butler v.
64
Ct.
cf.
S.
321 U. S.
380,
Michigan,
524,
77 S.
1 L.
Ct.
Ed.
of
State
any suggestion
upon
of an assault
there
In none was
412.
individual
by publication
privacy
in a manner so obtrusive
unwilling
impossible
it
for an
individual
to
make
as to
City Alexandria,
of
exposure
it. Cf. Breard
to
avoid
1233;
920,
622,
95 L.
Public Utilities
Ed.
71 S. Ct.
S.U.
Polak,
of Columbia
S.
District
of
Comm’n
in none
evi-
1068. And
was there
96 L. Ed.
72 S. Ct.
‘pandering5 which the Court found
sort of
dence
States,
Ginzburg
383 U.
United
S.
significant in
at
2d 31.55 386 U. S.
16 L. Ed.
Ct.
S.
varying ap-
Redrwp
on to discuss the
went
decision
justices, as
follows:
different
taken
proaches
consistently
have
adhered
the Court
of
members
“Two
utterly
power
suppress,
is
without
a State
the view
writings
pic
any
or
punish the distribution
or
control
‘obscenity5.
ground
A third has held
their
upon tures
narrowly
power
in this area
opinion that
State’s
clearly
class of mate
identifiable
to a distinct
limited
rial. Others
standard,
dissimilar
to a not
have subscribed
constitutionally
may
inhibit
holding
State
‘(a)
literary
unless
as obscene
material
distribution
appeals
as a whole
taken
the material
theme
dominant
patently
sex; (b)
material
interest
ato
community
contemporary
offensive because it affronts
relating
representation
description
standards
utterly
matters;
(c)
without
sexual
redeeming
value,’ emphasizing
‘three ele
social
coalesce,’
material can ‘be
ments must
such
and that no
utterly
proscribed
ing
redeem
unless
found to
it is
Memoirs
A
Clelands’
social value.’
Book Named ‘John
Attorney
Com. of
of Woman of Pleasure’ v.
General
418-19,
977-978.
Massachusetts,
Another Justice has not viewed the ‘social
86 Ct.
value’ elements
obscenity.
independent
judgment
Id., at
factor
46-462,
(dissenting opinion).
998-999
brought
views is
“Whichever of
constitutional
these
us,
judgments
upon
bear
cases before
it is clear that
cannot stand.”
was evidence of a concern for or of an assault on privacy, pandering, individual or of the Court would not ex- any protection. clude material from constitutional Since the Redrup decision, the United States Court has strengthened implication per in its curiam reversals of granted convictions. The Court has cer- twenty-nine Redrup, tiorari least cases after and in *18 twenty-eight obscenity convictions, of those cases has reversed citing Redrup twenty-six of the cases.1 Fording
The one affirmance came in the case Landau v. (1966), Rep. 177, Cal. aff’m in 388 U. S.
which the lower court found a film Jean Genet obscene. explicit Court found that the film contained and vivid masturbation, compulation, sodomy, scenes of facts of oral voyeurism, nudity, masochism, sadism and and that it had commercially exploited applying Ginzburg been test. per curiam
On examination the reversals indicate that the state, courts, consistently have lower both federal and mis- Dykema Supreme example, applied the Court’s test. For Obscenity “Report Pornography” on of the Commission & 1. See 105, Oregon (1970) , p. 31, for a list of these cases. Also see Childs v. fn. Michigan (1971), , (1971) Bloss v. S. Ct. 1615. 91 S. Ct. App. v. Bloss 17 Mich. 169 N. W. magazines appeals Michigan court of obscene held fifteen (1) enticing positions; (2) which showed women in and lewd photographs pubic accentuated and over- of the areas which removing areas; (3) photographs of women accentuated those partial and, garment; (4) erections their final men with Judge Presiding this case fore Levin’s dissent in erections. Supreme reversal shadowed the Court’s United States Dykema conviction in Bloss Judge As Levin stated: 26 L. 2d 230. Ed. agreement maps “I am in entire seized are vul- tawdry gar, unpleasant. question before us is not magazines ordinary
whether the odious are obscene in the they They clearly are sense of word. are —but whether phrase in the constitutional sense. The ‘obscene obscene art coined the United constitutional sense’ is a term of and, [citing Redrup] Supreme to the extent it States Court controlling term, has defined that its definition us. my may add, personal opinion nor, respectfully I Neither colleagues opinions my is relevant where there Supreme controlling opinion States Court. from the United has Court undertaken the “The United States development exposition and, law. It of this area of control of the only extraordinary very cases has made clear in the constitutional publications obscene will be deemed App. at 340. 17 Mich. sense.” Hoyt (1970), 286 174 N. W. 2d In State Minn. upheld convic- of Minnesota charging The court found that the sale of obscene books. tion pointless as it “save serves to book was of each theme degrad- repeated accounts of the characters lewd and relate ing They episodes. filth for the of filth.” Id. at deal with sake long in a and well-written dissent would have Otis Justice stating authority Redrup, that: on the reversed reading cited leads to the in- of the cases me careful “A here for escapable books consideration conclusion *19 criminally proved unless has obscene the state held cannot be significant one or more of doubt beyond a reasonable
227 Eedrup. elements to which the court made reference in In words, other the test seems to whether or not sale or juveniles; it distribution was an was directed whether privacy; obtrusive there assault individual whether Minn, pandering” was evidence of 286 at 109-110. conviction, Supreme The United did States Court reverse this citing Redrup. Hoyt (1970), v. U. S. Minnesota 399 90 Ct. S. L. 26 Ed. 2d 782. example, conviction,
In upholding obscenity another say: Court Tennessee had this to film, whole, only predominantly “This appeals not considered interest, pos- in fact it has no other appeal. patently sible public this film If is not offensive go customary substantially beyond or does not limits dealing pos- of candor in it sex, with then we do not think Management sible to Arthur make such a film.” Robert Corp. 112-113, 414 v. State 220 Tenn. S. W. 2d 638. opinion citing Redrup, reversed Management Corp. Tennessee,
Robert Arthur v. rel. ex Canale 389 U. 19 Ed. 2d 777. Books, S., (1st 1966), Judge Inc. 2d 935 F. Cir. Wyzanski upheld an conviction of the book “Lust Job,” finding that it was: exclusively “a tale prin- devoted to sexual of its adventures cipal only orgies Adulteries, seductions, characters. are the importance. events of The contacts described include only intercourses, sodomy perver- sexual but and other
sions.” 358 2d at F. 936. citing reversed, Redrup. Books, This conviction also Inc. 87 S. Ct. 18 L. Ed. 2d Copies Magazine “Exclusive,” In U. S. entitled (4th upheld 1967), F. 2d Fourth Cir. Circuit validity concerning of a confiscation destruction order ob- *20 magazine “Exclusive” described
scene material. The follows: young photographs “Exclusive is collection garter long stockings belts them, and
women. most employed to focus attention pubic area and are upon to frame the sought by use in suggestion it. A of masochism is binding many wrists pictures the model’s of the of chains facing squarely models, and ankles. Some of the seated camera, reveal the wide-spread legs in to order have their knees and entirety. pictures, genital of the In one area its only model, things in a The clad all of these are combined: stockings framing garter is chained to black and black belt camera, facing seated, upon with a chair she is which spread F. 2d 634. 373 elevated both wide.” one knee conviction, again citing Supreme Court reversed Magazine Redrup. Sales, (1967), Ltd. U. S. 389 Central v. 50, 88 19 Ed. 2d U. S. L. 49. course, have,
These
influenced
reversals
in this area. Several lower courts
lower court’s decisions
interpreted
Redrwp
to limit state
decision
control
have
privacy
obscenity
juveniles,
the three
invasion of
areas
Copies Maga
pandering. See,
example,
v.
for
U. S.
People
Stabile,
1967);
etc.,
Supp.
(D.
v.
zines,
903 Md.
276 F.
Wayne
905;
2d
Co.
et
Misc.
296 N. Y. S. 2d
al.
App.
(1968), 14
165 N. W.
Prosecutor
Mich.
v. Doerfler
News
13 Ohio
648;
J. Marshall
Co.
State
2d
v.
L.
have
on the
2d
Others
reversed
E.
435.
N.
Misc.
supporting
cannot
grounds
the conviction
compared
Court’s
with
when
obscene
be deemed
(1st
Keriakos,
See Draft Proposed §251.4(4). Official Code, Reported in 273 N. E. 2d Note. —
Shepherd Schoolcraft State Indiana. a/k/a 18, 1971.] Filed October 669S135.
[No.