City of Chicago v. Geraci
Decision Date | 17 November 1970 |
Docket Number | Nos. 42278--42288,s. 42278--42288 |
Citation | 46 Ill.2d 576,264 N.E.2d 153 |
Parties | The CITY OF CHICAGO, Appellee, v. Vincent GERACI et al., Appellants. |
Court | Illinois Supreme Court |
Howard T. Savage, Chicago, for appellants.
Richard L. Curry, Acting Corp. Counsel, Chicago (Marvin E. Aspen and Richard F. Friedman, Asst. Corp. Counsel, of counsel), for appellee.
The issue involved in these 11 separate appeals which have been consolidated for argument and opinion is whether 17 magazines and one paperback book are obscene. The publications involved were purchased by police officers from the defendants, Walter Bagnell, Charles Kimmel, Joseph Gale, William Stolfa, Vincent Geraci, John Geraci, and James Krueger at various times during 1968, and at different locations. Each case proceeded upon a complaint which charged the defendant with exhibiting and selling one or more obscene publications in violation of the Chicago obscenity ordinance. (Section 192.9, Municipal Code of Chicago.) In each of the cases, which were tried together, the defendant entered a plea of not guilty and filed a motion to dismiss the complaint on the grounds that the ordinance is unconstitutional and that the publications are constitutionally protected. After denial of the motion, each defendant elected to stand upon his motion to dismiss, and the circuit court of Cook County, sitting without a jury, found the publications to be obscene and assessed fines against the defendants. Neither the prosecution nor the defendants offered any evidence other than the publications themselves.
The applicable ordinance provides: (Section 192.9, Municipal Code of Chicago.) We upheld this ordinance against constitutional challenge in City of Chicago v. Kimmel (1964), 31 Ill.2d 202, 201 N.E.2d 386. See also People v. Sikora (1965), 32 Ill.2d 260, 204 N.E.2d 768; People v. De Vilbiss (1968), 41 Ill.2d 135, 242 N.E.2d 761.
In a case of this nature, the court must make an independent constitutional judgment as to whether the publications in issue are obscene or constitutionally protected. (City of Chicago v. Kimmel (1964), 31 Ill.2d 202, 207--208, 201 N.E.2d 386; City of Chicago v. Universal Publishing and Distributing Corp. (1966), 34 Ill.2d 250, 252, 215 N.E.2d 251; Jacobellis v. Ohio (1964), 378 U.S. 184, 190, 84 S.Ct. 1676, 12 L.Ed.2d 793.) We deal here with the materials in the abstract, without evidence of the circumstances surrounding production, sale, and publicity. (Cf. Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.) The publications in this case may be divided into five separate categories for purposes of analysis.
The magazine 'Arcadia, No. 15', published by Utopia Publications, is a 63-page pictorial containing unretouched photographs, many in color, of completely naked men and women. Although many of the photographs seem contrived to focus attention on the models' genitals, and although men and women are pictured together, they are engaged in various activities of an entirely nonsexual nature. Many of the photographs are posed in the out-of-doors and depict activities that might be thought to occur at a nudist camp. There is some accompanying textual material extolling the virtues of nudism as a way of life. The United States Supreme Court has summarily reversed several obscenity convictions which involved similar nudist magazines containing 'photographs of naked men, women and children, principally women, clearly revealing genitals, breasts and other portions of the body normally covered in public.' Since in the realm of first amendment freedoms we are bound by the decisions of the Supreme Court, we must hold that the magazine 'Arcadia' is constitutionally protected.
We consider next the magazine 'Male Parade No. 1', published by Sunshine Enterprises of Mays Landing, New Jersey. The magazine, designed for homosexuals, consists exclusively of pictures of naked male models posed indoors in such a manner that attention is focused on their genitals. The pictures are not unlike those described in United States v. 56 Cartons Containing 19,500 Copies of Magazine Entitled 'Hellenic Sun' (4th cir. 1967), 373 F.2d 635, 640, rev'd per curiam Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967): The Supreme Court has also reversed obscenity convictions involving similar homosexual magazines in Manual Enterprises, Inc. v. Day (1962), 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, and Central Magazine Sales, Ltd. v. United States (1967), 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49, rev'g per curiam United States v. 392 Copies of Magazine, Entitled 'Exclusive', 373 F.2d 633 (4th cir. 1967), 253 F.Supp. 485 (D.Md.1966). In light of these decisions, we must hold that the magazine 'Male Parade No. 1' is constitutionally protected.
The third category of publications consists of 14 magazines which contain photographs, many in color, of completely naked female models. The magazines are: 'June', Vol. 1, No. 1; 'Angel', No. 3; 'Bunny', No. 1; 'Cutie', No. 1; 'Judy', Vol. 1, No. 1; 'Pet', No. 2; 'Rene ', No. 1; 'Venus', Vol. 1, No. 3; 'Tan', No. 1; 'Cici'; 'Femmes in Color', No. 1; 'Suszette', No. 1; 'Teen-Age Nudist'; and 'Susy', Vol. 1, No. 1. Many of the models in these magazines appear in a reclining position on a bed or sofa, and all of them are posed seductively with their legs spread in such a way that their genitals are not only clearly revealed but are made the focal point of the photograph. Aside from the nature of the pose, however, none of the models is engaged in any explicitly sexual activity either alone or in conjunction with another person. Some of the magazines contain textual material setting forth arguments against censorship, suggestions of photographic techniques, and arguments in favor of nudism. But none of this innocuous prose bears any relationship to the photographs, publication of which is obviously the central reason for the magazines' existence.
The question of the constitutional status of these publications under the first amendment is foreclosed by the Supreme Court's summary reversal of an obscenity conviction involving the same kind of material. (Central Magazine Sales, Ltd. v. United States (1967), 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49, rev'g per curiam United States v. 392 Copies of Magazine Entitled 'Exclusive,' 373 F.2d 633 (4th Cir. 1967), 253 F.Supp. 485 (D.Md.1966). The United States Court of Appeals for the Fourth Circuit described one of the magazines involved in that case as (373 F.2d at 634.) The only authority cited by the Supreme Court for its reversal of the Court of Appeals decision was Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (per curiam), a case which held that whatever test of obscenity is applied, the magazines there involved were entitled to constitutional protection. We must conclude that the Supreme Court evaluated the material involved in the Central Magazine Sales, Ltd. case under all of the various tests of obscenity that have been advanced and determined that such material is not obscene. Accordingly, we must reverse the convictions as to the 14 magazines in the third category of publications.
With reference to the fourth category of publication, the magazine 'Mixmates', we are asked 'to consider that there is no depiction of sex relations in the pictures in 'Mixmates', and that therefore the magazine is absent the quality that might be characterized 'hard core pornography', if indeed it can be characterized as pornography at all.' We cannot agree. 'Mixmates' is a sado-masochistic magazine which contains photographs portraying lesbianism, rape, whippings, beatings, bondage, axing, and other abnormal sexual conduct. The pictures, almost without exception, depict scenes of...
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