*1 App 17 Mich CITY ATTORNEY v. BLOSS RAPIDS GRAND Holbrook, J. of Obscenity—Equity—Sale of Obscene 1. Constitutional Law — Injunction. Matter — city allegedly oily attorney permitting the in which Statute of bring against an action is sold the seller material to obscene distribution, preliminary enjoin or to obtain a sale such suspending pending injunction sale or distribution out- such destroy litigation, have the and and to seize come sheriff held, not an unconstitutional de- material found expression given idhere is trial nial defendant freedom of joinder day issue and a within one on the merits after days (CLS 1961, within two trial is rendered decision after 600.2938). § Expression Obscenity. Law —Freedom of — 2. Constitutional constitutionally protected Obscenity within the not area speech press. Obscenity—Definition. Phrases — 3. Words and theme, dominant to the av- is material whose Obscene material contemporary community standards, applying erage person prurient appealing in a interest. sex manner deals with Statutes—Vagueness. Law —Due Process — 4. Constitutional terminology precision im. the statute is Lad'c itself process; requirements is re- due all that to the offensive ^[15] [1] [2] ^[10] [16,18] [4, [9,17] [3, 5] 6-8,11-14] 21 16 Am Jur 47 Am 16 Am Jur 16 Am Jur Am Jur Am33 Am Jur, Jur, Beferences Jur, 2d, 2d, 2d, Constitutional Law Searches 2d, Am Constitutional Law Criminal Law Lewdness, Indeeeney Lewdness, Indeeeney Constitutional Law Jur, Lewdness, and Seizures for Points § 377. Indeeeney §§ §§ § § 349. 341, 345, 6-8, 552. Headnotes Obscenity Obscenity 14-16. 349. Obscenity §§ §§ 10. § 4. 20. Attorney Rapids City language convey sufficiently quired warn- definite ing proscribed conduct when measured common un- as to derstanding practice. Statutes—Vagueness. Law —Due Process — 5. Constitutional *2 injunctions against providing the sale and seizure Statute for filthy, disgusting” “obscene, lewd, lascivious, indecent of unconstitutionally vague (CLS 1961, 600.8988). is not material § Obscenity —Elements. 6. the dominant theme taken as a whole is obscene Material if sex, patently prurient it appeals interest in is to if offensive contemporary community re- it standards because affronts representation matters, lating description or sexual to the of redeeming utterly without social value. material is and if Appeal Group Obscenity —Deviant —Dis- 7. —Elements—Prurient tribution Material. obscenity requirement met prurient appeal test is The of if question appeals taken as a whole to the in the material clearly sexual prurient a certain deviant interest defined of designed primarily and group, dissemi- and the material for large. public group rather than to the at nated to — — Obscenity — Relevant Eactors Circum- Determination 8. op Distribution. stances background production, sale, the circumstances of of legitimate publicity materials are to consider in factors of determining or not material is obscene. whether Obscenity Photograph—Nude Individuals. 9. — featuring photographs magazines determination that Trial court genital fully suggestive poses, area with the in of females tending any clothing exposed to accentuate the worn held, genital proper. area, are obscene Material. Law —Search Seizure —Obscene Constitutional 10. complaint publications were named in a that certain The fact allegedly injunction prevent sought distribution an to permit a that material does not seizure obscene material complaint is served at the time the a search warrant without at defendant; publications seized on the officers therefore were there to at the time the book store officers defendant’s restraining temporary complaint order copy serve pursuant il- against statute were in an action defendant al legally improperly admitted in were evidence seized and App 17 pursuant proper trial, to a were not seized because contemporaneously with a arrest search warrant or lawful (CLS 1961, 600.0938). § Concurring Opinion J. Danhof, — n Contemporary Community Obscenity — — 11. Test Standards by Appellate — Trial Court Review Court. reviewing obscenity It should be borne mind courts de- position cisions that the trial court is in the best to be aware contemporary community what standards are the com- munity question. Obscenity Elements—Pandering. 12. — painted mailing sold a store which has windows Publications from impossible inside, only people it see which at admits least charges years age, and which one dollar admission is engaged might pandering finding not which to a contribute that the material sold is obscene. Obscenity Elements—Pandering. 13. — necessary finding It that elements *3 pandering present.

Concurring Dissenting in Part and in Part Levin, J. Oscenity—Definition. 14. Constitutional Law — phrase “obscene in the sense” constitutional term by Supreme art coined the United States Court and its of meaning obscenity ordinary than more restrictive sense the word. of Obscenity. 15. Constitutional Law — Publications are to be deemed in the constitutional obscene only extraordinary sense cases. Obscenity Comparison Ma- 16. —-Method of Determination — terial. Appeals should, dealing The Court when with an issue, attempt through comparison to malee its determination by controlling passed upon the materials with those involved of authority attempting in other rather than to arrive cases at statement obscenity. own Us definitional 1969)] Attorney Rapids City Bloss Grand Obscenity Photographs—Nude Persons. — 17. genital fully persons, area ex- Photographs with nude in the constitutional sense. posed, are not obscene 18. Obscenity Store its movie house admission, only people at least windows, selling — Elements—Pandering. and allegedly is not making which advertises engaged it obscene matter years impossible to pandering. age, which at a see which has blacked out neighboring inside, charges which admits one dollar adult-only

Appeal T. Submitted Kent, Letts, from John J. Rapids. February at 11, 1969, Grand Division May 5,365.) (Docket 1969. Leave No. Decided appeal 383 Mich 1969. December See denied Supreme Court United States 754. Reversed 1970. June city attorney Dykema,

Complaint L. Steven Floyd against Rapids, city and Michigan Corporation, County Theater The Kent corporation, employees agents, officers, their publica- allegedly enjoin of certain the sale of those and destruction for the seizure tions and publications. plaintiff. Judgment Defendant’s for dealing judgment portion stay motion granted. pending appeal and destruction seizure Judgment appeals. af- modified and Defendant firmed. Meyers Bechett Miles, & Milta, Dutchess, Brcnvn, for plaintiff. B. James Piggott, for defendants. W.

John P. J., BEFORE: Holbrook Levin, JJ. Danhoe, *4 March cause was commenced This J. Holbrook, city attorney by city injunc- permanent requesting Michigan,

Rapids, 17 Míen Aim Opinion op the Court restraining Floyd tion County Bloss and the Kent Corporation, Michigan corporation, Theater de- agents, fendants and their from possession employees officers, acquisition sale, the further distribution and or allegedly for sale of certain obscenebook- magazines lets with the through or submitted as exhibits A D complaint through and exhibits 1 15 and ex- complaints. hibit 19 submitted with amended Fur- requested ther relief was for their seizure and de- struction. n The cause was heard on March 15 and 16, 1968, at request stipu- of counsel for defendants and by plaintiff’s lation counsel. On March 18, 1968, presiding judge, the Honorable John Letts, T. filed opinion, opin- his written and in accord with the day judgment ion on the holding same was filed magazines question all the booklets and enjoining their further sale, distribution and acquisition possession for sale defendants. It copies was also ordered that the of these booklets possession in iff and of defendants be delivered to the sher-

destroyed. The execution of this order was stayed request at the of defendants’ counsel. The appeal questions defendants and raise 2 for consid- eration this Court, vis: (1) determining Did the trial court err in exhibits through 15 and exhibit obscene? (2) admitting Did the trial court err in exhibit 19 comprising several booklets taken from defendants’ by police upon authority book store in officers of and presence city attorney of when were purpose legal process serving there for the and a temporary restraining order on defendants and their agents ? §

This action is authorized under CLS 600- (Stat § pro- 27A.2938) .2938 Ann 1962 Rev which pertinent part vides as follows: *5 Rapids City Attorney 323 Grand op tub Coima Opinion The executive or office of “(1) legal chief any charter or city, village township prosecuting or at- of the county may institute maintain an torney action in the circuit court firm against person, or any or corporation enjoin prevent to the sale fur- or ther sale or the distribution further distribution acquisition book, or the or of possession any maga- comic pamphlet, book, story zine, paper, writing, paper, picture, figure or drawing, photograph, image matter an printed or written or indecent char- any which obscene, lascivious, in- acter, lewd, filthy, decent or or which disgusting, contains an article or instrument of or purports indecent immoral use or * * * to for or immoral or be indecent use purpose. A

“(4) preliminary injunction restraining or- may der be or at any issued time after complaint. of the filing person, firm or corpo- ration sought enjoined entitled to a trial of 1 within after day joinder issues of issue and a decision shall be rendered the court within days of the conclusion the trial. If

“(5) a final order or judgment injunction is entered favor such officer of the city, village or charter township and against the person, firm or corporation to be sought enjoined, final order or shall contain a judgment provision the per- directing son, firm or corporation surrender to the sheriff of the in which county the action was brought any of the matter described in (1) and the sheriff shail be directed to seize and destroy the same.” Defendants cannot contest of this legality pro under the ceeding foregoing statute an permitting in junction to issue and the destruction of copies of the booklets found be obscene by the court, be cause in the case Kingsley Books, Inc. v. Brown Ct S 2d Ed 1469), identical nearly New York State statute was up held in its entirety constitutional. App 17 plaintiff appears is the facts that

It Rapids. Floyd city attorney city Capri Book defendant, is the owner Bloss, Library also the owner of the cor- and is Store Capri operates porate Theater. defendant operation responsible for both the he In effect was Capri Capri and the Book Store and Theater of. *6 Library. shows adult movies and theater The permits admission without it advertises and occasion consistently charge. on the screen There was shown Capri advertising the Book a trailer at the theater away. Library about block The and located Store an advertis- maintained in the theater defendant also inspection type display ing ma- for free at the book store. Some of and books for sale terial by the trial court to have been found the booklets display. were this obscene by except the court All found exhibits purchased Capri from the Book Store exhibit were plaintiff. by at the trial for who testified witnesses price purchase was these booklets tremen- The dously cost of similar sized conven- in excess of the magazines. compris- The booklets booklets or tional duplicates ing of some exhibits were exhibit through These different booklets. were 15 and other store the officersand defendants’ book from taken attorney city went to the book store to when legal process. agents their defendants serve Library Capri Book to the Store entrance The a branch officeof Sec- shared in an alcove is retary the booklets the book Certain State. from the outside. can be viewed store plaintiff cited in their have and defendants The support great their cases in number of briefs positions. They dealt with numerous to be are too individually cases that are are certain There herein. obscenity to be con- and essential to the law basic Rapids City Attorney Í969] v. Bloss op the Court making sidered and followed in a correct decision in the instant case. Roth cases of v. United States and Alberts v. 1 L 1304, required Ed California 1498) together.

2d were decided One (in Both) provid construction of a federal statute ing filthy, lewd, obscene, lascivious, or indecent knowingly material is not mailable and that whoever deposits mailing delivery such material for criminally punishable. (in The California statute Alberts) punishable criminally every person makes wilfully lewdly produces who writes or otherwise obscene or indecent material, or who writes or other produces any any wise notice or advertisement of prosecuted, such material. Both defendants were appealed finally convicted and their convictions Supreme the United States Court. speaking majority

In for the of the Court, Mr. (pp 481-492): Justice Brennan stated as follows dispositive question “The is whether protected speech utterance within the area of press. Although question *7 this is first time the squarely presented been has Court, to this either under the First Amendment or under the Fourteenth expressions opin- Amendment, found in numerous always ions indicate that this Court has assumed that obscenity protected by speech is not of freedoms press. [Cases cited.] guaranties expression “The of freedom of in ef- in 10 fect of the 14 which States 1792 had ratified gave protection the Constitution, no absolute for every provided utterance. Thirteen the 14 of States prosecution for the libel, of and all of those States blasphemy profanity, made either both, or or statu- tory early crimes. as As Massachusetts made publish ‘any filthy, profane obscene, it criminal to or song, pamphlet, libel or mock sermón’ imitation mimicking religious of services. and Laws Acts App 17 Mici-i of (1712), (1814). Bay, §8 c. CV, the Province of Mass. of Colony Bay Laws 399 Charters & Mass. obscenity profanity related offenses. were Thus, history apparent light it that “In this of phrasing was Amendment the First unconditional phras- every protect This utterance. not intended concluding prevent ing from did not this Court of con- not within area utterances are libelous stitutionally protected speech. Illi- Beauharnais v. 96 L Ed nois 343 US adoption 919). the First the time of the At fully obscenity devel- Amendment, law was as contempo- sufficiently oped law, libel but there is as obscenity, too, was evidence show raneous press. protection speech and for outside the intended press given speech protection was fash- “The interchange for of ideas ioned to assure unfettered the changes bringing political and about of social people. objective made ex- This was desired early plicit as in letter the Continental as Congress Quebec: to the inhabitants “ regards right mention, shall ‘The last we press. importance of this con- freedom of the science, mo- sists, truth, the advancement of besides rality, general, in its of liberal and arts diffusion Government, administration of its sentiments thoughts ready subjects, between communication of promotion among consequential of union and its whereby oppressive them, officersare shamed or in- just timidated, into more honourable modes conducting affairs.’ of the Continental Journals (1774). Congress 108 having slightest redeeming “All ideas even the so- importance ideas, controversial cial —unorthodox prevailing ideas, even ideas hateful to climate protection guaranties, opinion full —have because encroach unless excludable limited area plicit rejection important of more interests. But im- history of the First Amendment is the in the redeeming utterly without *8 1969] Rapids City Attorney Court importance. rejection This social for that reason is judgment obscenity in the universal mirrored that restrained, in should be reflected the international agreement of all enacted obscenity in of over 50 nations, laws obscenity States, the 48 and in the 20 laws Congress from 1842 to 1956. This is judgment expressed by Chap the same this Court Hampshire linsky 572 Newv. 568, (62 1035). 86 Ed * * “ are There certain well-defined and nar- rowly speech, prevention limited classes of punishment thought never which have been to any problem. raise Constitutional These include the * * * lewd It and obscene. has been well observed part any that position utterances are such no essential ex- slight ideas, and are such social value step any may to that truth that be de- benefit outweighed clearly rived them is the social from * * *’ morality. (Emphasis in order interest added.) obscenity hold that “We within the area of constitutionally protected speech press. or urged strenuously “It is that these stat- guaranties utes offend the constitutional because they punish impure thoughts, incitation to sexual any not shown to be related overt antisocial con- may persons which or duct incited stim- thoughts. judge ulated such In Roth, the trial in- jury: structed the ‘The “obscene, words lewd and signify lascivious” immorality law, as used form impurity which has relation to sexual tendency thoughts.’ (Em- a has to excite lustful phasis added.) judge applied In Alberts, the trial People Wepplo (1947), the test laid down App Supp namely, 853), Cal 2d P2d whether deprave tendency the material has ‘a substantial corrupt by inciting thoughts or its readers lascivious arousing (Emphasis added.) lustful desires.’ It guaranties is insisted the constitutional are vio- may proof lated because convictions be had without *9 Arp 17 op Opinion tiie Court perceptibly create will material that obscene either danger present conduct, of antisocial or a clear recipients probably to such conduct. its

will induce obscenity holding light is not But, in of our argu speech, complete protected ment to this answer holding of in Beauharnais this Court is 266): supra (343 atUS Illinois, “ being within the area of not utterances ‘Libelous unnecessary, constitutionally protected speech, is it courts consider the State for us or for either danger.” present phrase “clear behind issues speech, Certainly would that obscene one contend .no showing may punished upon example, only be for Libel, seen, as have circumstances. we of such class.’ the-.same synonymous. obscenity are not

“However, sex and material which deals with sex material is Obscene * * * prurient appealing to interest. a manner n early leading obscenity allowed standard “The merely judged iso the effect an material to lated Regina upon particularly susceptible persons. excerpt (1868), QB Amer LR.3 360. Some v. Hicklin adopted but later decisions this standard courts ican. have ...rejected test: whether it and substituted this contemporary person, applying average com to'..the munity‘standards, mate theme of the the dominant prurient appeals rial'¡taken interest. a whole as obscenity judging by the test, Eicklin effect The persons, susceptible passages the most isolated treating ¡legitimately encompass might material well rejected so it must be unconstitu sex, and speech tionally the freedoms of restrictive of press. hand, the substituted standard On the other adequate safeguards provides to withstand * * * constitutional'infirmity. charge of provide argued , that the-statutes do not rea “It is guilt sonably and there standards of ascertainable requirements of due the constitutional fore violate process. v. New York Winters obscenity. Ed 840). Federal Attorney City Rapids punishable mailing of material makes statute * * * filthy lascivious, or ‘obscene,lewd, that is publication indecent character! The Cal- of an other keep- punishable, alia, the inter makes ifornia statute advertising ing is' material that ‘obscene for sale or argument The thrust or indecent! because,they sufficiently precise these words are thing people, time, all all the the same do not mean everywhere. recognized “Many that these terms have decisions precise. Court, This are not statutes *10 precision consistently lack of held that has however, is proc requirements of due to the not itself offensive * * ‘* require im does ess. Constitution required possible is that the all that is standards’; warning ‘conveys sufficiently language as to definite proscribed when measured common conduct the understanding * * *’ practices. United States (67 (1947), 1538, 8 S Ct 1, 7, 332 US 91 v. Petrillo L Ed 1883). applied according words, These 1877, judging obscenity, already pro proper for the standard to discussed, adequate warning give of the conduct ** ‘* sufficiently and mark boundaries scribed juries fairly judges to for administer distinct ** *’ may marginal cases That there the law. the the line it is determine side of in which difficultto particular fact falls is no suffi on which situation ambiguous language to hold the too reason to cient define (Emphasis supplied a criminal offense.” Court.) Supreme (1966), Memoirs v. Massachusetts In the case of (86 1), obscenity 16 L 975, Ed 2d S Ct 418) (p : was further defined as follows following in the in Roth “We defined average person, applying to the terms: ‘Whether contemporary community theme of the prurient dominant the standards, appeals material taken as a whole to p 1 L Ed US, 489, at 2d at interest! definition, 1509. Under this as elaborated subser App 318 17 Mich it must coalesce: quent must three elements cases, (a) theme of the dominant the be established prurient appeals in- to a whole taken material terest because patently (b) offensive material is sex; community contemporary stand- it affronts representation description relating ards sexual matters out utterly (c) is with- the material ; and redeeming value.” social Mishkin York 383US v. New In the case 56), (86 384 US 16 L Ed 2d reh den 502 934 S Ct 535), pp 508, 509, the 16 L Ed 2d S Ct “average person” aspect enlarged of the court appeals questioned material test as to whether prurient stating: interest, primarily designed material for and “Where clearly defined deviant sexual disseminated to prurient- public large, group, rather at than requirement appeal if Roth test satisfied a whole theme of the material taken as the dominant prurient appeals of the mem to the interest sex ‘average’ group. The reference bers of or person Roth, 489, 490, at US, ‘normal’ 1510) 1 L at at Ed 2d does not foreclose prurient-appeal holding. regard re In to the this concept ‘average’ quirement, or ‘normal’ *11 essentially person employed was in Roth to serve the purpose expressing rejection negative of that of our (1868), aspect Regina test, Hicklin v. Hicklin of the impact LR on most sus QB 360, 3 that made the the ceptible person determinative.” (1966), Ginzburg In the case of v. United States (86 31) L 383 16 Ed 2d reh den US 463 S Ct (86 536), 16 Ed 2d it was US background decided that the of the circum- further production, publicity stances of sale and of the ma- legitimate determining in if terials were factors the 466): (pp i.e., obscene, material is Rapids City Attorney “In cases in which the this Court has decided ob scenity questions regarded Roth, since it has the as in materials sufficient for the themselves determi question. present nation the In of the how case, prosecution charged ever, offense the con production, text of the publicity of circumstances sale, standing pub

and assumed that, alone, the might agree lications that the tion presented not be obscene. themselves We question obscenity may of include considera setting publications which the were determining question an aid to of obscenity, deciding and assume without prosecution could not have succeeded otherwise. As in Mishkin v. New York Ct S 56), 958, 16L Ed 2d and as did the courts below, Supp, F at 134, 338 at we F2d, 14, 15, view the publications against background ex commercial ploitation solely pruri of erotica for the sake of their appeal. regard amply sup ent The record in that ports judge mailing the decision trial that the publications of all three offended the statute.” Ginzburg, supra, In there was evidence to show that questioned publications were the stock in trade pandering of “sordid business business —‘the purveying graphic openly textual or matter adver- * * * appeal tised to the erotic interest cus- ” tomers.’ The Court found such evidence “relevant determining question obscenity,” the ultimate determining importance and in “whether social claimed for material in was, courtroom the cir- pretense reality cumstances, it was —whether marketplace basis which it was traded in the spurious litigation purposes.” or a claim for purveyor’s Court further held “where the sole emphasis sexually aspects provocative publications, may his that fact be decisive in the obscenity.” determination of *12 App obscenity many cases asserted

There are other plaintiff applicable by both and de to this case helpful here are not because Those cases fendants. analogous the material or because facts are not the upon particu specifically with set forth is not ruled larity. the with reference to case This is true Redrup (1967), 386 New York 515) relied the 18 L Ed 2d cited and 1414, defendants. per opinion as we read it This curiam the material therein ruled is confined to facts and upon. recognizes long law that

As as our fundamental protected the under First and obscenematerial is not Amendments the United States Con- Fourteenth enforcing charged duty of stitution, are with the we in accordance with Roth the State and statutes supra, subsequent Alberts, clear modifica- tions as herein recited. important parts deem trial

We it to reiterate the opinion, judge’s as follows: patrons Capri The- “It is the revealed that subjected advertising, are ater to various forms advertising, primarily ‘trailers’ on the or commercial informing patrons to visit theater, screen said Capri Library In Book Store & after show. magazines type ‘trailers’, addition to said Capri are kind are on sale at the Book Store displayed lobby Capri Theater for ex- patrons mag- of the theater. The amination including Girl’, editions of are dis- azines, ‘Cover legend: played sign with the under “ Capri product at Book ‘This is available (Exhibit Library 16) & at 303 S. Div.’ Store testimony Capri “There was unrebutted Library possess, display & Book Store does periodicals. recognized All standard, merchan- sell apparently sex, both dise male treats and deals prom- in their nude state female, both sexes *13 Attorney City Rapids Bloss Opinion op the Court the of the on three on covers walls inently displayed magazines. that he was gen- admitted Floyd

“Defendant the magazines with the contents of familiar erally read the print but could not display which he had language. it was in the in one because Swedish finds, after to the listening testimony, “The court (Exhibits that each an exhibit magazine comprising displayed in case was 19) prominently 1-15 and this a rack and the cover of each magazine on magazine in morbid or man- lurid, enticing sex some portrays to further examination of its con- ner so as invite * * * tents. “Generally most the speaking, magazines, espe- Girl’ and are cially ‘Exciting,’ editions ‘Cover dominated nude near-nude photographs in poses. women various sexual These photographs often The model on a a depict: bed or bed is part is in an picture; posi- model or lewd enticing tion of sexual position intercourse; pu- such as bic area is bare and such as the women wear clothing tends to accentuate the focus on the pubic area, i.e. belt; silk centuates stockings the model’s ac- garter pose the pubic area, open; i.e. the vagina the model removes her in a series of pictures clothing properties such suggestively; beds, stools, veils, as in chairs and are used such as to clothing way * * * heighten prurient interest. “Some an editorial com- magazines carry ment to the effect that are art magazines, exclu- for use in sively sons interested in serious artists and furnishing per- art, who have some difficulty find living models, suitable to be photographs as drawing, used substitutes for and sculp- painting The court finds turing. these claims are spurious and that the magazines involved are for and designed intended to be distributed to persons who have may a natural or -prurient interest nude pictures women in various sexual poses. (cid:127) “The court in question finds that exhibits are patently offensive because each contempo affronts App 17 descrip relating community rary standards regardless representation matters of sexual tion or community or local national, statewide whether a of standard ‘contempo determining applied * * * community rary standards.’ at to adopts ‘Roth test’ and follows “This court arriving preliminarily, at a decision least obscene, are this court before the exhibits whether applying average person, contem to the vis., whether community theme porary the dominant standards, appeals prurient whole, material, taken as supra. this Under States, Roth v. United interest. subsequent three cases, definition, as elaborated It must be established must coalesce: elements (a) as a material taken theme of the the dominant *14 (b) prurient appeals the sex; interest in a

whole material is temporary community patently it con because affronts offensive relating to the standards representation description matters; and sexual or redeeming utterly (c) social is without the material (1966), 383 US v. value. Memoirs Massachusetts 1). (86 L Ed 2d 975, 16 Magazines, Entitled v. “In United States 25,000 following (1966), Supp lan- 254 F the ‘Revue’ pertinent guage case: is to this “ ‘(2) photographs are nude women A. Not all though the breasts or the focus is on obscene, even photographs pubic are not rendered the area. Such merely kneeling or models are because the prop- lying handling or other scarves, or veils down, vulgar positions, posed if erties, or in unusual or expressions positions or en- are not lewd their ticing. men in such The inclusion of a nude man or photographs unless not render them obscene does suggested. activity depicted type is or some of sexual may “‘(3) Among factors which render B. the photographs con- which obscene and should such (1) are: that authorities sidered enforcement picture; part a or a bed is of the the model is on bed (2) enticing an lewd is in or or position; that the woman pubic (3) such the or that area bare Attorney City Rapids accentuate tends to wears the woman as clothing pose the area; or that (4) pubic focus the area; or that the wom- (5) pubic overaccentuates or suggestively; garment her final removing an is as way are such used properties (6) inman that a interest; (7) or prurient heighten any or erection partial has erection or an picture type depicted.’ or activity suggested of sexual taken the material theme “‘(4) The dominant or more ob- considered, but one a whole must be as appeal may heighten prurient scene photographs of other photographs magazine.’ such forth this court finds set the standards so “Under (Exhibits 1-15 and exhibits every one each 19) and obscene. Each of morbid disgusting, to be tests. This prescribed each of the exhibits meets said purpose redeeming finds no social value court the of the exhibits any or distribution publication only moti- and finds that sole and 19) (1-15 of sex in its most dis- exploitation to be the vation form. gusting

“In of obscenity addition to determination test, the Roth finds to each under this court that as said Bloss has Floyd exhibits defendant in the business of both textual and purveying been openly matter advertised to appeal graphic his prurient customers, is, erotic or interest of in Ginz pandering the sordid business defined v. United States S burg Ct 31).” 16 Ed 2d *15 The of man reflects the history fact that man’s in life experiences and human conduct have been instrumental in the formulation of governments by free men and the to Constitutions writing circum- scribe the and rights of its citizens. Al- privileges though written on the printed pages such in- struments it is that imperative acknowledge rights and if therein, contained to be privileges truly oper- ative for all men, require duties and corresponding Arp 17 Mich part

responsibilities tbe of all citizens. This is Federal which true in the case our Constitution of In- was the morals of the Declaration built dependence. founding accepted fathers Our moral recognized brought the harm code that that is about by being exposed of men the minds and hearts publications. generally accepted It is truth heart, that as a man thinketh his mind and so good legal man, he. All acts those which are pre- criminal, are á result of direct or.bad ceding thought in the mind, and the desire pro- founding heart the actor. Our fathers never speech press claimed freedom of in the Amendment of First our Constitution was to shelter exploitation publications commercial of obscene for profit. consistently Our forefathers have adhered to majority present this A truth. substantial of the generation freely has chosen to adhere -this truth recognizing compass the direction on the morality founding played set our fathers has part proper development vital people. in the moral hoped

It is that this will of all be true generations. future public

The cannot should not be insulated pro the facts of life; neither from should miscuously exposed, urged embraced, enticed, publica devious methods to read or view obscene thought tions which stir their to that attacks which permitted, their moral fiber; for if such is the result response by will be a is. those affected which less requirement preservation than the minimum for the society. healthy of a survivable morals progress citizens of a nation determine that nation’s length very thinking and the of her life. All men great realize that we cherish if nation, if our we prosper hfer, love and would have her and be a great good imperative force for world—it this *16 Rapids City Attorney v. Bloss Opinion op the Court high morals be on a ideals and maintained that her acceptance plane. people’s of this truth is The by adopted by the laws demonstrated legislatures duly representatives in the elected their Congress of the United the states and all years. through These should laws down States hopes applied if the citizens alike all expectations founding are to be fathers our day, present the last one-third in our this realized Century. Twentieth including reviewing exhibits the evidence After through other to no conclusion 15, we can come determination is that trial court’s find but to correct, through (exhibits publications i.e., by 15)* federal obscene as tested are Ginzburg, supra; Alberts, Roth and under standards supra; supra; Massachusetts, Mishkin, Memoirs publications protected supra. not are These obscene Amendments First and Fourteenth under Constitution. United States asserts raised defendants

The second issue magazines comprising several and book- exhibit at store defendants’ book lets taken the officers serving process and a tem- of the court when porary restraining defendants order agents was inadmissible. restraining per- process temporary order specific a statute

tained to enforcement permanent injunction enjoin- permitting to issue ing allegedly material after the sale of judicial hearing on the and a determination merits These exhibit numbers Cover Girl citing troduced at Cover Girl Girl ^[*] No. 19; 14; 1, No. Pinned No. 15; 16; trial, No. 10, No. Missie No. Cover Girl No. Exciting 7, 4, Cover Girl 1; correspond to No. 15; 13; 2, were itemized No. Jaybird Photographer No. 13; 1; 11, No. No. the exhibits Cover Exciting 8, 5, Exciting Cover Girl complaints. 14; 20; as Girl No. 19; No. they No. No. 12; 12, 9; were No. Ex- No. 9, Cover Gigi. in- 3, 6, 17 App Opinion by J. Danhof, process

that the material was obscene. The *17 temporary restraining permit order did not complaint the material named in seizure of certainly justify could not the seizure of other ma People terial not named. The case of v. Cattaneo (1955), (126 692) Ill 2d NE2d is dealt with by concerning both counsel the admission of exhibit equip gambling 19. That case involved a seizure of open public place. ment when exhibited in view in a differently gambling Printed matter is equipment than treated gambling equipment because is contra per may may band, se. Printed matter not be obscene based consideration the entire con publication. supra. tents Alberts, of each Roth and by That there was search is evidenced the fact inspected that of the material about one-half was opinion selected to be obscene in the and the of the officers city attorney. pur-

The search and seizure was not carried out contempora- suant to a warrant search nor was it a lawful arrest. The statute under which neous plaintiff provide proceeding was did not for such a search and circumstances, seizure. Under the ex- illegally seized and hibit 19 was therefore not admis- sible. judgment of the circuit court is affirmed in except particulars

all that exhibit 19 is deleted public question being costs, therefrom. No in- volved. (concurring). being J., At the risk Danhof, treading higher a fool for where those of

termed might being tread, fear to mindful that stature jurisprudence with the those concerned long will note nor remember what we state little duty it is nevertheless the of this herein, Court to matter. in this make a decision Attorney 1969] Rapids City J. Danhof, concerning the have doubts who be those there If regards law as obscen- nature fractionalized Redrup York ity, v. New attention to their we invite 515). (87 18 L (1967), Ed 2d S Ct 386 US ultimately Supreme hope only canWe will hand down to those the United States Court of guidelines definitive on a lower level more of us pending that clair- However, have. than we now voyant guidance proceed we must on the basis what have. we opinion the criteria set writer is of the

This 354 US forth Roth v. United States 1498) (77 supplemented L1 Ed 2d S Ct (1966), 383 US 413 Memoirs v. Massachusetts 1) controlling in the 975, 16 Ed 2d are still obscenity. The which have dealt area of other cases *18 subject merely interpretive this matter are with propositions. Applying these criteria these basic my I concur with brother hand*, the materials at regard In 1 thru 15. so in to exhibits Holbrook appellants doing am mindful that for the I counsel question publications in are has admitted that the redeeming utterly The trial social value. without applied necessary having criteria court, advantageous position being to be in a much more community contemporary standards aware of the are, than must be affirmed. we “pander-

I do not find in this case the elements present Ginzburg ing” in v. United which were (86 (1966), 2d L Ed S Ct States 31), necessary present. I nor do deem it that these be Redrup supra, York, New must on the Also, v. stand not Roth and facts of that case and it has overruled supra. Memoirs,

vantage ^[*] At least those who believe that being required to view the nothing publications. is obscene have the ad- ' Act? 318 17

Opinion by P. J. Levin, I in decision of brother Hol- concur also my exhibit 19. regards brook judgment circuit The court is affirmed except as it exhibit 19. relates to public question being

No involved. costs, (concurring part dissenting P. in J., Levin, part). agreement my I am entire col leagues magazines vulgar, that the seized are taw dry unpleasant. question us, The before how magazines ever, is not whether these odious are ordinary they obscene sense of the word— clearly are—but whether are obscene in the phrase constitutional The “obscene in the sense. constitutional is a term of art1 coined sense” Supreme and, the United it. Court2 to the extent States controlling term, has defined that its definition is my personal opinion I nor, Neither us. re spectfully opinions my colleagues add, the opinion controlling relevant where there is a from Supreme the United States Court. Supreme has United States Court under- exposition development

taken the and control very of this area of the law. It has made it clear only extraordinary publications cases will deemed in the sense. constitutional to be Bachelor, footnote “satisfied so-called York authority Shame supra, 2d Ginsberg decided In 1 For non-art. 2 Redrup 515), holding- *19 People (1968), ‘obscene Agent on the “girlie” 5, Modern of and additional United' infra, v. Zerilli Pedrup New 390 US the eases collected and the in authority and “nudist” Man, Cavalcade, Gentleman, the constitutional ¡seized publications not- obscene the for York set aside Zerilli’s conviction for ^[629] (1969), magazines listing (88 Redrup. magazines! ^[14] S Ct of the cases cited 386 US 767 Nigh Neels, Spree, Gent, Swank, States paperback sense’ in Of footnote 3 1274, are App ’ of the Supreme We declared that we were 20 L Ed 2d 513, Redrup books Ace and Sir. same our Court on the Ginsberg Court decisions Lust Pool selling typical v. footnote 3 of type 195).” New held not v. York, New See Ed 341 Attorney City v. Radius P. J. Levin, law such as where an In area and definitions are in- definitions decision turns evitably, hopelessly we more obscure, have to learn comparison of the materials involved in from passed upon by case us those con- before authority trolling at- in other cases than from an explicate tempt still another definitional ourselves statement. pre Memoirs3 and a of other number

Unlike Redrup Supreme opinions United States Redrup, opinion in bears 1967, decided Court,4 (7 justices) signatures majority of the 9 Supreme Subsequent Court. United States Supreme Court United States decisions Redrup clearly dismis demonstrate cannot'be n colleagues my an isolated decision as sed, would, authority of its facts. On the confined to to be Supreme Redrup Court United States has of lower Federal State 19 decisions reversed courts.5

16 Ed S Ct Ed 378 US US New 2091, 18 L Aday 2d 2098, fornia 47); 388 US 388 US S Ct States (1964), 378 (84 California (87 (1967), 388 ^[3] 4 See, 5 Keney L City 1309) Memoirs v. 2d ^[443] S Ct S Ct York 1432, Potomac 233, v. United States 18 L 1302); (1967), ^[453] ^[452] ^[577] 2d e.g., (87 ; 2092, 1676, Books, Hammond v. New 1). 8 L Ed (1967), (1967), 389 Ed 2d Ed 2d US US (87 (84 (87 S Ct Manual L Friedman ^[388] News 389 US 50 ^[18] Massachusetts 12 L Ed ^[576] S Ct ^[444] S Ct S Ct Inc. L 2092, US York 1303); 1311) ^[388] 2d 2d (84 (87 Ed 2d 2104, Co. v. (1967), Ed Enterprises v. United 1909, 2105, ^[454] 639) ; (1967), 46); US v. S Ct ^[18] S Ct (1967), ; 2d (88 Ratner (87 A New York ^[18] ^[446] 1304); L 12 L 18 L United Central 793); Jacobellis v. Ohio Quantity 1903, 12 L Ed 2093, L S Ed (1966), S ^[388] States (87 Ct Ed 2d 388 US 440 US 48 v. Ed Ed v. 2d US Cobert v. New Grove Press Ct 2107, ^[18] States S Ct Magazine Sales, Day California 2d 1305) ; (1967), (1967), ^[383] L Ed ^[447] 3314; 19 L Ed 2d 2d 1035); (88 18 L Ed 2d 2093, (1962), Books v. Kansas US (87 (1967), 2d 2d S Ct Sheperd Mazes 388 US 441 (87 ^[388] 1315); S Ct (1964), ^[18] ^[413] (1967) v. Gerstein 1033). 1306); Schackman v. Tralins York S Ct 370 US US 449 L v. (86 49) ; 2095, Ltd. v. United 1316); Ed 2d Avansino Ed 2d v. Ohio 388 US ^[19] 378 US v. (1967); 2091, US v. Gerstein New York S Ct Chance v. (87 L 18 L (87 ^[478] (1964), (1967), (1967), 1308); Conner Ed 2d 256) ; 18 L S Ct Cali S 975, ^[442] ^[184] ^[388] (82 (88 Ed Ct *20 App 17

342 318 by Levin, P. J. Opinion magazines The seized present ease are of 2 types: frontal views of

1) magazines showing undressed men and, thus, male portraying genitals; on

2) magazines female focusing genitals. activity any Sexual portrayed s.6 magazine The United in a num Supreme States Court has ber of cases held that magazines photo containing nude, male graphs completely showing models full views their are not obscene. Poto genitals, mac News 389 Company v. United States (1967), (88 reversing 47 S Ct 19 L Ed 2d 233, 46), US authority Redrup, United States v. Cartons 56 Entitled Copies Containing Magazine 19,500 (CA “Hellenic Sun” F2d 4,1967), 635; similarly 373 Magazine Sales, Central Ltd. States v. United (1967), (88 389 50 19 L Ed 2d 235, 49), US S Ct United reversing Copies Magazine States v. 392 4, (CA 633; Entitled “Exclusive” 373 F2d 1967), Enterprises, (1962), Manual Inc. v. 370 478 Day US L (82 1432, 639); S Ct 8 Ed 2d Felton v. City of 19 1098, Pensacola 390 US 340 S Ct (1968), (88 L 200 1220) reversing (Fla 1967), Ed 2d So App, 842; Book Co. v. (1958), 2d Sunshine Summerfield 2 L (78 365, 352) reversing Ed 2d 355 US 372 S Ct 128 (D F2d 114 and (CADC, DC, 1955), 249 1957), F 564. Supp on female focusing in the pictures magazines shown The models are are most explicit.

genitals I. M. Amusement Felton v. ^[19] 19 L ex rel. Canale 433 P2d L See P2d Ed 2d 20 L Ed 2d Ed 2d People 385). 479); City 1220); 776) (1968), In 1343). re Panchot Noroff ; Corp. Pensacola Henry Robert-Arthur 389 US 578 Ohio (1967), 67 Cal 2d 791 v. Louisiana (1968), (1968), v. Management Corp. (88 70 Cal 2d ^[390] S Ct (1968) 389 US US 691, ^[340] ^[573] ^[19] (63 Cal (73 Cal (88 (88 Ed S Tennessee, S Ct Rptr 575, Rptr 2d Ct 777); 690, Attorney Rapids City v. Bloss G-rand Levin, P. J. lying sitting, kneeling standing, on their hacks spread many legs cases with their or stomachs genital revealing entire area. Magazine States, Sales, Ltd. v.

In United Central *21 by Redrup, authority supra, justices, the of 7 6 on a, per opinion the reversed the decision of curiam Appeals for the Fourth Cir- of States Court United Magazine Copies v. cuit in United States of supra. Appeals “Exclusive,” The Court Entitled 634): (p magazine thus Exclusive described the photographs of collection of “Exclusive is a stockings long young garter and them, In most of women. pubic employed area to frame the are belts upon suggestion A it. and to focus attention pic- by many sought in the use of the is masochism binding models’ and ankles. of chains the wrists tures squarely facing the models, of the seated Some legs widespread in camera, have their knees entirety. genital area in its order to reveal the In pictures, things of the all of these are combined: one The only garter framing in a black belt model, clad upon stockings chained to a chair black is which facing camera, she is the with one seated, knee spread elevated and wide.” both Magazine Sales, States, Central Ltd. v. United supra, genitals,7 full establishes that views of female genitals, no less than full views of male are not in the constitutional sense. agree Judge judge that the trial Danhop I pander- clearly was erred when he found that there Magazines this case are the district of “Cover Girl” obscene in the constitutional hibits. A panel the cited of 5 eopies Maryland “Exciting" case; United of the same issues of the P held that States district Supp sense. were are 902. typical issues of the United, subject A of the female judges number States to seizure sitting publications Danish genitalia because en bane exhibits magazines Copies ruled not ex- Aim 17 Mich 31S P. J. Levin,

ing maga- in this case. The defendant sold these age zines in a to which bookstore no one under the charge, of 18 admitted. There admission $1 against any purchase. of which is credited 50‡ operates adult-only defendant also an art, movie theatre. Ho on advertises, the screen and dis- playing magazines lobby, in the theatre - publications purchased fact that such can be at bookstore.

By displaying magazines themselves without any description of their contents the defendant any suggestive avoided characterization, or other- concerning magazines wise, the nature of the By display. only” displaying magazines in an “adult- any movie theatre defendant avoided com- persons might regard sight munication with who magazine objectionable an such intrusion. advertising availability The on-screen magazines display lobby these their *22 “pandering” such a movie theatre is neither nor “obtrusive” the sense which those terms were Redrup Ginzburg used in v. United States 31). 16 L US 463 Ed 2d agree my colleagues publications I that the comprising illegally exhibit 19 were seized. injunction.

I would reverse and vacate the