People v. Ridens

• Decision Date: 27 November 1974
• Docket Number: Nos. 43974,44449,s. 43974
• Citation: 321 N.E.2d 264,59 Ill.2d 362
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Frank C. RIDENS et al., Appellants. The CITY OF MOLINE, Appellee, v. Larry WALKER, Appellant.
• Court: Illinois Supreme Court

Page 264

321 N.E.2d 264

59 Ill.2d 362

The PEOPLE of the State of Illinois, Appellee, v. Frank C. RIDENS et al., Appellants.

The CITY OF MOLINE, Appellee, v. Larry WALKER, Appellant.

Nos. 43974, 44449.

Supreme Court of Illinois.

Nov. 27, 1974.

Donald M. Reno, Jr., Reno, O'Byrne & Kepley, Champaign, for appellants.

William J. Scott, Atty. Gen., Springfield, and Philip G. Reinhard, State's Atty., Rockford (James B. Zagel and Raymond McKoski, Asst. Attys. Gen., of counsel), for the People.

GOLDENHERSH, Justice:

Defendants, Frank C. Ridens and Marilyn Keckler, a/k/a Norma Keckler, appealed to this court from judgments of the circuit court of Winnebago County entered upon their being found guilty of obscenity (Ill.Rev.Stat.1969, ch. 38, par. 11--20). Defendant Larry Walker appealed from the judgment of the circuit court of Rock Island County which found him guilty of violating the obscenity ordinance of the City of Moline. The cases were consolidated for argument and opinion, and the judgments were affirmed. (People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691.) The Supreme Court of the United States granted Certiorari, vacated the judgment of this court, and remanded the cause 'for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, * * *.' (413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030.) On remand we ordered the filing of supplemental briefs 'limited exclusively to the constitutionality of Ill.Rev.Stat. (1969), Ch. 38, par. 11--20, in light of the judgment of the United States Supreme Court in Ridens, et al. v. Illinois, 413 U.S. 912, 93 S.Ct. 3046, 37 L.Ed.2d 1030 (1973), and whether or not the appellants' convictions should be affirmed after the remand.' The facts are adequately set forth in our earlier opinion and will not be restated here.

In two separate complaints, defendant Ridens, owner of two stores in Rockford, and defendant Keckler, his employee, were charged under the obscenity statute with the sale of allegedly obscene magazines. The circuit court found defendants guilty, fined them, and imposed jail sentences.

Defendant Walker, in two separate complaints, was charged under the Moline obscenity ordinance with the sale of obscene magazines. In a bench trial he was found guilty and fined.

Defendants contend first that the obscenity statute and the Moline obscenity ordinance are overbroad and vague and violate defendants' rights under the first and fourteenth amendments to the Constitution of the United States. The People contend that, as 'heretofore authoritatively construed,' the obscenity statute, as required by Miller v. California, 'defines with particularity the kinds of specific sexual conduct which can be found obscene.' The People argue alternatively that if this court finds that the obscenity statute 'has not been previously construed to incorporate the Miller standard, the Court can and should now' so construe it.

In Miller, the Supreme Court said:

'* * * State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, Supra, 390 U.S. 676, at 682--685, 88 S.Ct. 1298, 1302, 20 L.Ed.2d 225, 230--232 (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written of authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

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, Supra, 408 U.S. 229, at 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 315 (1972), quoting Roth v. United States, Supra, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, (1 L.Ed. 1498, 1509 (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 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 the second 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.' Miller v. California, 413 U.S. 15, 23--5, 93 S.Ct. 2607, 2614--15, 37 L.Ed.2d 419, 430--1.

In pertinent part the Illinois obscenity statute provides:

'(a) Elements of the Offense.

A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:

(1) Sells, delivers or provides, or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or

(3) Publishes, exhibits or otherwise makes available anything obscene; or

(5) Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this Section, or of the penal laws or regulations of any other jurisdiction; or

(6) Advertisers or otherwise promotes the sale of material represented or held out by him to be obscene, whether or not it is obscene.

(b) Obscene Defined.

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.

(c) Interpretation of Evidence.

Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.

Where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance.

In any prosecution for an offense under this Section evidence shall be admissible to show:

(1) The character of the audience for which the material was designed or to which it was directed;

(2) What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have on the behavior of such people;

(3) The artistic, literary, scientific, educational or other merits of the material, or absence thereof;

(4) The degree, if any, of public acceptance of the material in this State;

(5) Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;

(6) Purpose of the author, creator, publisher or disseminator.'

The Moline ordinance in pertinent part provides that a person commits obscenity when within the City of Moline he sells, offers or attempts to sell, distributes, gives away, offers to or attempts to give away prints or publishes an obscene book, magazine, pamphlet, paper, photograph, drawing, motion picture, film, phonograph record, film strip or slide.

'Section 2. A thing is obscene for purposes of this Ordinance when to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest; that is,

a) That the dominant theme of the material taken as a whole appeals to a prurient interest in sex, and

b) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of the sexual nature, and

c) The material is utterly without redeeming social value.'

'It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.' Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227.

'The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by this Court. As was said in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996,

'The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.'

Thus we have struck down a state criminal statute under the Due Process Clause where it was not 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.' Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328. We have recognized in such cases that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential...