WARD v. ILLINOIS
No. 76-415
Supreme Court of the United States
Argued April 27, 1977—Decided June 9, 1977
431 U.S. 767
Melbourne A. Noel, Jr., Assistant Attorney General of Illinois, argued the cause for appellee. With him on the brief were William J. Scott, Attorney General, and Raymond McKoski, Assistant Attorney General.
MR. JUSTICE WHITE delivered the opinion of the Court.
The principal issue in this case is the validity of the Illinois obscenity statute, considered in light of Miller v. California, 413 U. S. 15 (1973). There we reaffirmed numerous prior decisions declaring that “obscene material is unprotected by the First Amendment,” id., at 23; but acknowledging “the inherent dangers of undertaking to regulate any form of expression,” ibid., we recognized that official regulation must be limited to “works which depict or describe sexual conduct” and that such conduct “must be specifically defined by the applicable state law, as written or authoritatively construed.” Id., at 24. Basic guidelines for the trier of fact, along with more specific suggestions, were then offered:
“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U. S. 229,] 230 [(1972)], quoting Roth v. United States, [354 U. S. 476,] 489 [(1957)]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U. S., at 419; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting). “We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions
of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 24-25. (Footnotes omitted.)
“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.”1
In October 1971 appellant Ward was charged in the State of Illinois with having sold two obscene publications in violation of
As we read the questions presented by Ward,2 they fairly subsume four issues. First, is the claim that Illinois has failed to comply with Miller‘s requirement that the sexual conduct that may not be depicted in a patently offensive way must be “specifically defined by the applicable state law as written or authoritatively construed,” see supra, at 768, and that absent such compliance the Illinois law is unconstitutionally vague because it failed to give him notice that materials dealing with the kind of sexual conduct involved here could not legally be sold in the State. This claim is wholly without merit. As we shall see below, the State has complied with Miller, but even if this were not the case, appellant had ample guidance from the Illinois Supreme Court that his conduct did not conform to the Illinois law. Materials such as these, which by title or content may fairly be described as sado-masochistic, had been expressly held to violate the Illinois statute long before Miller and prior to the sales for which Ward was prosecuted.
In People v. Sikora, 32 Ill. 2d 260, 267-268, 204 N. E. 2d 768, 772-773 (1965), there are detailed recitations of the kind of sexual conduct depicted in the materials found to be obscene under the Illinois statute. These recitations included “sadism and masochism.”3 See also People v. DeVilbiss, 41
Second, Ward appears to assert that sado-masochistic materials may not be constitutionally proscribed because they are not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the aspect of its obscenity definition dealing with patently offensive depictions of specifically defined sexual conduct. But those specifics were offered merely as “examples,” 413 U. S., at 25; and, as later pointed out in Hamling v. United States, 418 U. S. 87, 114 (1974), they “were not intended to be exhaustive.” Furthermore, there was no suggestion in Miller that we intended to extend constitutional protection to the kind of flagellatory materials that were among those held obscene in Mishkin v. New York, 383 U. S. 502, 505-510 (1966). If the Mishkin publications remain unprotected, surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law.
The third claim is simply that these materials are not obscene when examined under the three-part test of Miller. This argument is also foreclosed by Mishkin v. New York, supra, which came down the same day as Memoirs v. Massachusetts, 383 U. S. 413 (1966), and which employed the obscenity criteria announced by the latter case. See Marks v. United States, 430 U. S. 188, 194 (1977). The courts below examined the materials and found them obscene under the Illinois statute, which, as we shall see, infra, at 774-776, conforms to the standards set out in Miller, except that it retains the stricter Memoirs formulation of the “redeeming social value” factor. We have found no reason to differ with the Illinois courts.
Fourth, even assuming that the Illinois statute had been
As we see it, Illinois has not failed to comply with Miller, and its statute is not overbroad. People v. Ridens, 51 Ill. 2d 410, 282 N. E. 2d 691 (1972), vacated and remanded, 413 U. S. 912 (1973), involved a conviction under this same Illinois obscenity law. It was pending on our docket when our judgment and opinion in Miller issued. We vacated the Ridens judgment and remanded the case for further consideration in the light of Miller. On remand, the Illinois Supreme Court explained that originally
Because the Illinois court did not go further and expressly describe the kinds of sexual conduct intended to be referred to under part (b) of the Miller guidelines, the issue is whether the Illinois obscenity law is open-ended and overbroad. As we understand the Illinois Supreme Court, however, the statute is not vulnerable in this respect. That court expressly incorporated into the statute part (b) of the guidelines, which requires inquiry “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” 413 U. S., at 24. The Illinois court thus must have been aware of the need for specificity and of the Miller Court‘s examples explaining the reach of part (b). See id., at 25. The Illinois court plainly intended to conform the Illinois law to part (b) of Miller, and there is no reason to doubt that, in incorporating the guideline as part of the law, the Illinois court intended as well to adopt the Miller examples, which gave substantive meaning to part (b) by indicating the kinds of materials within its reach. The alternative reading of the decision would lead us to the untenable conclusion that the Illinois Supreme Court chose to create a fatal flaw in its statute by refusing to take cognizance of the specificity requirement set down in Miller.
Furthermore, in a later case, People v. Gould, 60 Ill. 2d 159, 324 N. E. 2d 412 (1975), the Illinois Supreme Court quoted at length from Miller v. California, including the entire passage set out at the beginning of this opinion, supra, at 768-770—a passage that contains the explanatory examples as well as the guidelines. It then stated that Ridens had construed the Illinois statute to include parts (a) and (b) of the Miller guidelines, and it expressly referred to the standards set out in the immediately preceding quotation from Miller. 60 Ill. 2d, at 164-165, 324 N. E. 2d, at 415. Because the quotation contained not only part (b) but the examples given to
It might be argued that, whether or not the Illinois court adopted the Miller examples as part of its law,
Given that Illinois has adopted Miller‘s explanatory examples, what the State has done in attempting to bring its statute in conformity with Miller is surely as much as this Court did in its post-Miller construction of federal obscenity statutes. In Hamling v. United States, 418 U. S., at 114, we construed
So ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART joins, dissenting.
Petitioner was convicted of selling allegedly obscene publications in violation of the Illinois Obscenity Statute,
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting.
The decision in this case confirms the statement in Miller v. California, 413 U. S. 15, 23, that “[t]his is an area in which there are few eternal verities.” Today, the Court silently abandons one of the cornerstones of the Miller test announced so forcefully just five years ago.
The Miller Court stated:
“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that
his public and commercial activities may bring prosecution.” Id., at 27.
The specificity requirement is stressed elsewhere in the opinion.1 More than 50 cases were remanded for further consideration to give the defendants the “benefit” of this aspect of Miller. See 413 U. S. 902 et seq.; Marks v. United States, 430 U. S. 188, 197 n. 12.
Many state courts, taking Miller at face value, invalidated or substantially limited their obscenity laws.2 Others, like Illinois, did “little more than pay lip service to the specificity requirement in Miller.” F. Schauer, The Law of Obscenity 167 (1976). Like most pre-Miller obscenity statutes, the Illinois statute contained open-ended terms broad enough to prohibit the distribution of any material making an “appeal . . . to prurient interest.”3 In its post-Miller opinions,
Miller.” (Emphasis added.) In Hamling, the Court quoted this language and added:
“As noted above, we indicated in [12 200-Ft. Reels of Film] that we were prepared to construe the generic terms in
18 U. S. C. § 1462 to be limited to the sort of ‘patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California.’ We now so construe the companion provision in18 U. S. C. § 1461 . . . .” 418 U. S., at 114.
of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” 40 Ill. 2d, at 396, 240 N. E. 2d, at 598.
Neither of these decisions requires conduct to be specifically defined; indeed, Raby notes that to survive a vagueness attack a statute need not “attempt to particularize all of the myriad kinds of conduct” within its bounds. This may be true for other vagueness attacks, but does not square with the special Miller requirement that conduct be specifically defined. Nowhere else in the Ridens II opinion does the Illinois Supreme Court limit the reach of the obscenity statute.
In the present case, the Illinois Supreme Court again considered the specificity problem, and again refused to narrow the statute:
“It was held in Ridens II that the obscenity statute was sufficiently clear and that it adequately informed the public of the conduct whose depiction is proscribed. We noted that the statutory definition of obscenity includes within the scope of the ‘prurient interest’ a ‘shameful or morbid interest in nudity, sex or excretion.’ The defendant argues that we erred in Ridens II in our interpretation of Miller and that Miller requires obscenity statutes to be much more specific in defining the type of material which will be considered obscene. We see no reason to reconsider our decision in Ridens II. It is extremely difficult to define the term ‘obscenity’ with a fine degree of precision. We again express our opinion that Illinois’ statutory definition is sufficiently clear to withstand constitutional objections.” 63 Ill. 2d 437, 441, 349 N. E. 2d 47, 49 (1976).
Thus, there does not appear to be anything in the Illinois decisions that would preclude the State from prosecuting forms of obscenity not “specifically defined” in prior decisions. And, as noted above, the statute provides no specific definition in this area.
The Court‘s second theory is that, in any event, the Illinois statute is sufficiently specific to satisfy Miller. Although the statute does not contain an “exhaustive list” of specific examples, ante, at 776, it passes muster because it contains a generic reference to “the kinds of sexual conduct which may not be represented or depicted under the obscenity laws . . . .” Ibid. (emphasis in original). To hold that the list need not be exhaustive is to hold that a person can be prosecuted although the materials he sells are not specifically described in the list. Only five years ago, the Court promised that “no one” could be so prosecuted, Miller, 413 U. S., at 27. And if the statute need only describe the “kinds” of proscribed sexual conduct, it adds no protection to what the Constitution itself creates. For in Jenkins v. Georgia, 418 U. S. 153, this Court held that the Constitution protected all expression which is not “within either of the two examples given in Miller” or “sufficiently similar to such material to justify similar treatment.” Id., at 161.