Childs v. State of Oregon
Decision Date | 01 September 1970 |
Docket Number | No. 24770.,24770. |
Citation | 431 F.2d 272 |
Parties | Harold G. CHILDS, Appellee, v. STATE OF OREGON and James C. Holzman, Director of Department of Public Safety of Multnomah County, Albert B. Green, Director, Department of Judicial Administration of Multnomah County, and George Van Hoomissen, District Attorney of Multnomah County, Oregon, Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Al J. Laue (argued), Asst. Atty. Gen., Jacob B. Tanzer, Sol. Gen., Lee Johnson, Atty. Gen., Dept. of Justice, Salem, Or., George Van Hoomissen, Dist. Atty., Billy L. Williamson, Deputy Dist. Atty., Portland, Or., for appellant.
Paul R. Meyer (argued), of Kobin & Meyer, Portland, Or., for appellee.
Before DUNIWAY, WRIGHT and TRASK, Circuit Judges.
The State of Oregon brings this appeal from a judgment of the district court granting a writ of habeas corpus to Harold G. Childs. The court's opinion is reported at 300 F.Supp. 649 (D.Ore. 1969).
Childs, operator of a cigar store in Portland, Oregon, was convicted at jury trial in the Circuit Court of Multnomah County, Oregon, of disseminating obscene matter in violation of O.R.S. § 167.1511 following his sale of a copy of the paperback book, "Lesbian Roommate", to a Portland police officer. His conviction was affirmed by the Oregon Supreme Court. State v. Childs, Or., 447 P.2d 304 (1968). That court's opinion describes the contents of the book in detail. The court held, among other things, that, applying the obscenity tests announced by the Supreme Court in A Book Named "John Clelands Memoirs" v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the book was not constitutionally protected as a matter of law. A petition for certiorari to the United States Supreme Court was denied. Childs v. Oregon, 394 U.S. 931, 89 S.Ct. 1198, 22 L.Ed.2d 460 (1969).
Childs then petitioned the district court for habeas corpus relief, alleging that he "was found guilty by the application of standards for judging obscenity which are in violation of the First and Fourteenth Amendments and in direct contradiction of the applicable decisions for judging obscenity." The district judge determined that the Oregon Supreme Court misinterpreted the United States Supreme Court's definition of "prurient interest." He stated:
300 F.Supp. at 650.
He then found that "Lesbian Roommate" does not appeal to a "prurient interest", and is therefore not obscene.
We consider that the Oregon state courts correctly applied the Supreme Court's definition of "prurient interest",
"Obscene material" was defined in Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (1957), as "material which deals with sex in a manner appealing to prurient interest." That phrase was, in turn, defined in footnote twenty to the Court's opinion. That footnote reads as follows in its entirety:
The Oregon trial judge adopted the ALI Model Penal Code definition in his charge to the jury in this case. He said:
We are convinced that, although the Oregon Supreme Court's opinion does not contain the phrase, "shameful or morbid interest in nudity, sex or excretion", the court applied that standard. The court previously had adopted that standard in State v. Jackson, 224 Or. 337, 356 P.2d 495, 507 (1960):
The Court in Childs was not unmindful of Jackson, and cited it for another proposition. See 447 P.2d at 308.2
Even if Childs is read as a departure from Jackson in that it defines "prurient interest" in terms of "lascivious thoughts" and "lustful desires"3 we do not view this definition as impermissible in light of Roth v. United States, supra, 354 U.S. at 487 n.20, 77 S.Ct. 1304.
At least two other federal courts, relying on Roth, have adopted similar definitions. Flying Eagle Publications v. United States, 273 F.2d 799, 803 (1st Cir. 1960); United States v. Keller, 259 F.2d 54, 58 (3d Cir. 1958).
We hold that both the trial court, in its instructions to the jury, and the Oregon Supreme Court applied the proper federal constitutional standards in this case.
We also consider that we are obligated to make an independent, de novo constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected. Jacobellis v. Ohio, 378 U.S. 184, 189-190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).4 The fact that this case reaches us on review from a petition for habeas corpus after having been considered by four5 previous courts does not appear to diminish our obligation.
This court has made de novo determinations of obscenity in state habeas corpus cases on several occasions. See, e. g., Pinkus v. Pitchess, 429 F.2d 416 (9th Cir. June 29, 1970); Culbertson v. California, 385 F.2d 209 (9th Cir. 1967); Wenzler v. Pitchess, 359 F.2d 402 (9th Cir. 1966), cert. denied, 388 U.S. 912, 87 S.Ct. 2096, 18 L.Ed.2d 1351 (1967).
Applying the three-pronged test announced in Memoirs v. Massachusetts, supra, 383 U.S. at 418, 86 S.Ct. 975, and in Redrup v. New York, 386 U.S. 767, 770, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), we find that the dominant theme of the book in question, taken as a whole, appeals to a prurient interest in sex, that the book is patently offensive because it affronts contemporary...
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