479 F.2d 577 (5th Cir. 1973), 71-1091, United States v. Groner

Docket Nº:71-1091.
Citation:479 F.2d 577
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.
Case Date:May 22, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 577

479 F.2d 577 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.

No. 71-1091.

United States Court of Appeals, Fifth Circuit.

May 22, 1973

Page 578

Mel S. Friedman, Will Gray, Houston, Tex., for defendant-appellant.

Frank D. McCown, U. S. Atty., Wm. F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., Larry E. Butcher, Atty., Criminal Div., Administrative Reg. Sec., Dept. of Just., Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

GEWIN, Circuit Judge: [*]

This court sitting en banc has given full and careful consideration to the views expressed in the panel's opinion in this case and a majority of the court has concluded to reverse the opinion of the panel. 1

The judgment of conviction entered by the district court upon a jury verdict of guilty is affirmed.

On this appeal a brief summary of Groner's contentions will suffice. He contends that: (1) the books involved in this case are not obscene when viewed under proper constitutional standards; (2) the evidence was insufficient to support his conviction; (3) the proceedings before the Grand Jury were defective in that a prior adversary hearing on the question of obscenity was not first conducted; (4) 18 U.S.C.A. § 1462 is unconstitutional on its face; (5) the books in question were unlawfully seized and should have been suppressed; (6) the trial court improperly instructed the jury; (7) the trial court improperly limited jury argument.

The posture of the case is adequately set forth in the panel's opinion. We deem it unnecessary to enlarge upon that opinion's recitation of the facts.

Page 579

There are solid grounds for setting aside the opinion of the panel. As will be developed hereinafter, the requirement that the prosecution support its proof by expert testimony on the elements of obscenity is misconceived, unnecessarily burdensome, and confounds traditional concepts of proof. It is little more than a fetishism formulated in the name of the First Amendment. We conclude that expert testimony on the elements of obscenity is not a constitutional necessity.

It is, of course, settled that an appellate court in First Amendment cases must make "an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected." Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793, 799. This doctrine began in Pennekamp v. Florida, 1946, 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295, 1297. This means that an appellate court must take a hard look at the quantum of proof in order to insure that vital First Amendment rights are protected. Cf. Rosenbloom v. Metromedia, 1971, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296. See also the separate opinions in Firestone v. Time, Inc., 5 Cir., 1972, 460 F.2d 712, explicating this constitutional duty of an appellate court. It should go without saying that appellate courts are zealous in their efforts to protect all rights including constitutional rights of any kind, but we have been charged by the Supreme Court with making an extra effort in the First Amendment area.

The material which is claimed to be obscene in this case consists of bound textual material with sets of unrelated photo inserts. The government offered no expert testimony on the question of the obscenity of the material, choosing instead to rely for its proof on the materials together with appropriate instructions from the court to the jury. The defendant offered the testimony of experts in the fields of literature and psychology to demonstrate that the materials were not obscene. The jury returned a verdict finding defendant guilty.

The panel opinion, however, set aside the jury's verdict on the ground that it was not supported by expert testimony. We turn now to a consideration of the panel's reasoning. Its limited scope is to be noted. It excludes from the reach of the requirement that expert testimony be offered, those cases which are said to fit into the holding of this court in Kahm v. United States, 5 Cir., 1962, 300 F.2d 78, described as materials which are "graced with no plot, no character development, no exemplification of independent literary efforts." 475 F.2d p. 556. It also excludes from its reach those cases where "the questioned material might be so terribly depraved and so lacking in candor that anyone would know without question that the community norm had been forsaken in the writer's quest for sexual sensationalism" or where "the appeal of the material could only be to the prurient interests of its readers." P. 559.

In short, the panel found expert testimony necessary only for the close cases; but even to this extent, it is an illfounded and an unwise imposition on the prosecution. As will be seen, the panel was led into error by the positions taken in the trial court by counsel for the government and the defendant as to the prevailing law of obscenity.

I.

The premise underlying the requirement of expert testimony seems to be the difficulty that the appellate court may experience in carrying out its duty to make an independent constitutional judgment as to obscenity vel non. The panel, citing Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, perceived the obscenity test to be as follows:

"1. Whether the materials, taken as a whole, appeal primarily to the prurient interests of the average adult;

Page 580

"2. Whether the materials are patently offensive because they go substantially beyond the customary limits of candor in their description of sex and nudity; and

"3. Whether the materials are utterly without redeeming social value."

This test, however, does not come from Roth but apparently represents an amalgam of the individual views of members and former members of the Supreme Court, taken from their respective concurring or dissenting opinions in Roth and subsequent decisions involving obscenity. It is not the prevailing test although it was the test used by the trial court and by the panel at the suggestion of counsel for the parties. Elements Numbered 2 and 3 are not a part of the prevailing test and Element Numbered 1 is incomplete in that it fails to state the test in the context of contemporary community standards.

There are only two decisions of the Supreme Court in which the test for determining obscenity has been stated in a majority opinion. The first is Roth and the other is the recent opinion in Kois v. Wisconsin, 1972, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312. The court was fragmented in the interim decisions where the obscenity test was involved and no particular test mustered a majority. 2 We therefore take our test from Roth and Kois.

First, Roth held that obscenity is not within the area of constitutionally protected speech or press. 354 U.S. at 485, 77 S.Ct. 1304. Then, to define obscenity the Court stated that obscene material is material which deals with sex in a manner appealing to prurient interest. 354 U.S. at 487, 77 S.Ct. 1304. The test to be used by the fact finder was stated as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. 354 U.S. at 489, 77 S.Ct. 1304. Other language in Roth indicated that a finding of obscenity would necessarily preclude the presence of redeeming social importance in the material but this does not appear to be an element of the test. 354 U.S. at 484-485, 77 S.Ct. 1304.

The first variance from the Roth test appeared in Manual Enterprises v. Day, 1962, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, where Justice Harlan, joined only by Justice Stewart, added to the Roth test the patently offensive element. No other member of the court has ever joined in this addition. Given this fact, it is clear that there is no basis for element numbered 2 of the test used in the panel opinion.

In Memoirs v. Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, the test was restated by three justices as follows:

"[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Justice Clark, one of the majority of five in Roth, dissented on the ground that Roth defined obscenity as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal[ed] to prurient interest." He rejected the "utterly without redeeming social value" portion of the test. Justice White, although not a member of the Roth court, also rejected the "utterly without redeeming social value" element.

Page 581

This was the last word on the test for determining obscenity until Kois v. Wisconsin, supra, where the court in a per curiam opinion representing the views of seven justices 3 interpreted the Roth test as follows:

"Material may be considered obscene when 'to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest'." 408 U.S. at 230, 92 S.Ct. at 2246, 33 L.Ed.2d at 315.

Thus it is now clear from Kois that the test for obscenity does not include the element "utterly without redeeming social value." This was element numbered 3 of the test used in the panel opinion.

At this point it is plain that the requirement of expert testimony as to these two elements of the test used by the panel is without premise and the reasons for the...

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