Brockett v. Spokane Arcades, Inc Eikenberry v. Distributors, Inc

• Decision Date: 19 June 1985
• Docket Number: J-R,Nos. 84-28,84-143,s. 84-28
• Parties: Donald C. BROCKETT, Appellant, v. SPOKANE ARCADES, INC., et al. Kenneth EIKENBERRY, Attorney General of Washington, et al., Appellants, v.DISTRIBUTORS, INC., et al
• Court: U.S. Supreme Court

472 U.S. 491

105 S.Ct. 2794

86 L.Ed.2d 394

Donald C. BROCKETT, Appellant,

v SPOKANE ARCADES, INC., et al.

Kenneth EIKENBERRY, Attorney General of Washington,

et al., Appellants,

v.

J-R DISTRIBUTORS, INC., et al.

Nos. 84-28, 84-143.

Argued Feb. 20, 1985.

Decided June 19, 1985.

Syllabus

A Washington statute declares to be a "moral nuisance" any place "where lewd films are publicly exhibited as a regular course of business" or "in which lewd publications constitute a principal part of the stock in trade." The statute provides that "lewd matter" is synonymous with "obscene matter" and defines these terms to mean, inter alia, any matter which the average person, applying contemporary community standards, would find, when considered as a whole, "appeals to the prurient interest." "Prurient" is defined to mean "that which incites lasciviousness or lust." Appellees—various individuals and corporations who purvey sexually oriented books and movies—challenged the statute on First Amendment grounds in Federal District Court, seeking injunctive and declaratory relief. The District Court rejected appellees' constitutional challenges. The Court of Appeals reversed, invalidating the statute in its entirety on its face on the ground that the definition of "prurient" as including "lust" was unconstitutionally overbroad in that it reached constitutionally protected material that merely stimulated normal sexual responses.

Held: The Court of Appeals erred in facially invalidating the statute in its entirety. Pp. 496-507.

(a) These cases are governed by the normal rule that partial, rather than facial, invalidation is the required course. Unless there are countervailing considerations, the Washington statute should have been invalidated only insofar as the word "lust" is to be understood as reaching protected materials. Pp. 501-504.

(b) Since prurience may be constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful or morbid interest in sex, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, if the Washington statute were invalidated only insofar as the word "lust" is taken to include normal interest in sex, the statute would pass constitutional muster and would validly reach a whole range of obscene publications. Moreover, if the Court of Appeals thought that "lust" refers only to nor- mal sexual appetites, it could have excised the word from the statute, since the definition also refers to "lasciviousness." Pp. 504-505.

(c) Even if the statute had not defined prurience at all, there would have been no satisfactory ground for striking it down in its entirety. The statute itself contains a severability clause, and it is evident that if the statute were invalidated insofar as it proscribes materials that appeal to normal sexual appetites, the remainder of the statute would retain its effectiveness as a regulation of obscenity. In these circumstances, the issue of severability is no obstacle to partial invalidation. Pp. 506-507.

725 F.2d 482, reversed and remanded.

Christine O. Gregoire, Olympia, Wash., for appellants.

John H. Weston, Beverly Hills, Cal., for appellees.

Justice WHITE delivered the opinion of the Court.

The question in these cases is whether the Court of Appeals for the Ninth Circuit erred in invalidating in its entirety a Washington statute aimed at preventing and punishing the publication of obscene materials.

I

On April 1, 1982, the Washington state moral nuisance law became effective. Wash.Rev.Code §§ 7.48A.010-7.48A.900 (1983).¹ It sets forth a comprehensive scheme establishing criminal and civil penalties for those who deal in obscenity or prostitution. The statute declares to be a "moral nuisance" any place "where lewd films are publicly exhibited as a regular course of business" and any place of business "in which lewd publications constitute a principal part of the stock in trade." §§ 7.48A.020(1), (3). Subsection (2) of the "Definitions" section of the statute provides that "lewd matter" is synonymous with "obscene matter," and defines these terms to mean any matter:

"(a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and

"(b) Which explicitly depicts or describes patently offensive representations or descriptions of:

"(i) Ultimate sexual acts, normal or perverted, actual or simulated; or

"(ii) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area; or "(iii) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and

"(c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value." § 7.48A.010(2).

The word "prurient," as used in subsection (2)(a), is defined in subsection (8) to mean "that which incites lasciviousness or lust." § 7.48A.010(8).

On April 5, four days after the effective date of the statute, appellees—various individuals and corporations who purvey sexually oriented books and movies to the adult public ² challenged the constitutionality of the statute in Federal District Court, seeking injunctive and declaratory relief. One of their assertions was that the statute's definition of "prurient" to include "that which incites . . . lust" was unconstitutionally overbroad because it reached material that aroused only a normal, healthy interest in sex and that the statute was therefore to be declared invalid on its face.³ Appellees alleged that the sexually oriented films and books they sold were protected by the First Amendment, and that the state authorities would enforce the new legislation against them unless restrained by the Court. App. 33. On April 13, the District Court for the Eastern District of Washington issued a preliminary injunction against enforcement of the statute. Id., at 35.

After trial, the District Court rejected all of appellees' constitutional challenges to the validity of the statute. 544 F Supp. 1034 (1982).⁴ A divided panel of the Court of Appeals for the Ninth Circuit reversed. 725 F.2d 482 (1984). It first held that a facial challenge to the allegedly overbroad statute was appropriate despite the fact that the law had not yet been authoritatively interpreted or enforced. This was necessary when First Amendment rights were at stake lest the very existence of the statute have a chilling effect on protected expression. The Court of Appeals acknowledged that facial invalidation required "substantial overbreadth," Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), but concluded that the requirement applies only when the challenged statute regulates conduct, as opposed to "pure speech." 725 F.2d, at 487. Nor did the court find this to be an appropriate case for abstention. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

Reaching the merits, the Court of Appeals held that by including "lust" in its definition of "prurient," the Washington state legislature had intended the statute to reach material that merely stimulated normal sexual responses, material that it considered to be constitutionally protected. Because in its view the statute did not lend itself to a saving construction by a state court and any application of the statute would depend on a determination of obscenity by reference to the "unconstitutionally overbroad" definition, the Court of Appeals declared the statute as a whole to be null and void.⁵

The defendant state and county officials separately appealed to this Court. We noted probable jurisdiction in both cases, 469 U.S. 813, 105 S.Ct. 76, 83 L.Ed.2d 25 (1984).⁶

II

The Court of Appeals was of the view that neither Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), nor later cases should be read to include within the definition of obscenity those materials that appeal to only normal sexual appetites. Roth held that the protection of the First Amendment did not extend to obscene speech, which was to be identified by inquiring "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Id., at 489, 77 S.Ct., at 1311 (footnote omitted). Earlier in its opinion, id., at 487, n. 20, 77 S.Ct., at 1310, n. 20, the Court had defined "material which deals with sex in a manner appealing to prurient interest" as:

"I.e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows:

" '. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd. . . .'

"Pruriency is defined, in pertinent part, as follows:

" '. . . Quality of being prurient; lascivious desire or thought. . . .'

"See also Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 242 [35 S.Ct. 387, 390, 59 L.Ed. 552 (1915) ] where this Court said as to motion pictures: '. . . They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. . . .' (Emphasis added.)

"We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.:

" '. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., 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. . . .' See Comment, id., at 10, and the discussion at page 29 et seq."

Under Roth, obscenity was equated...