Alexander v. Com.

• Decision Date: 17 January 1972
• Citation: 186 S.E.2d 43,212 Va. 554
• Parties: Howard ALEXANDER et al. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 43

186 S.E.2d 43

212 Va. 554

Howard ALEXANDER et al. v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Jan. 17, 1972.

Stanley M. Dietz, Washington, D.C. (James B. Power, Norfolk, on brief), for plaintiffs in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

PER CURIAM.

Pursuant to Code § 18.1--236.3, the Commonwealth's attorney for the City of Portsmouth petitioned the trial court to adjudge certain magazines to be obscene. On August 3, 1970, a motion to dismiss was filed alleging that the statute is unconstitutional as being repugnant to the First Amendment to the Constitution of the United States. No November 4 and 5, 1970, the case was heard on its merits, and on December 5, 1970, the court entered an order adjudging the magazines obscene and restraining the sale or commercial distribution of them.

On this appeal two questions are presented. First, whether Code § 18.1--236.3 is unconstitutional, and second, whether the evidence adduced at the hearing was sufficient to support the court's adjudication that the magazines were obscene.

The Supreme Court of the United States has held that obscenity is beyond the protection of the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Code § 18.1--236.3 provides a judicial procedure for adjudicating whether material is obscene or not. It is not a criminal proceeding. The constitutional attack on this statute is that it does not provide for a jury trial, permits a prior restraint on literary material, provides a community standard for judging obscenity rather than a national standard and is vague in violation of the Constitution. We find no merit to any of these alleged constitutional infirmities.

Counsel for appellants admits there has been no ruling by the Supreme Court requiring a jury trial in a proceeding of this kind. Since Code § 18.1--236.3 was not in force when the Constitution of the United States was adopted, a jury trial is not constitutionally required. Bowman v. Va. State Entomologist, 128 Va. 351, 372, 105 S.E. 141, 148 (1920).

Appellants assert the narrow contention that prior restraint of literary material violates the First Amendment. The statute in question does permit the issuance of a temporary restraining order upon four days' notice, after the court has found probable cause to believe the material is obscene and has issued a show cause order. But, no temporary restraining order was issued in this case. Even so, all prior restraint is not necessarily prohibited. Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961). See also Freedman v. Maryland, 380 U.S. 51 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) and United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971).

The Supreme Court has not ruled on the question whether the standard for judging obscenity should be a community or national standard. ¹ We are of opinion that a community standard is the proper standard. In light of the diversity of opinion that exists in our nation, it would be impossible to establish a workable national standard. See Chief Justice Warren's dissenting opinion in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676,...