City of Chicago v. Geraci

• Court: Supreme Court of Illinois
• Citation: 46 Ill.2d 576,264 N.E.2d 153
• Docket Number: Nos. 42278--42288,s. 42278--42288
• Parties: The CITY OF CHICAGO, Appellee, v. Vincent GERACI et al., Appellants.
• Decision Date: 17 November 1970

Page 153

264 N.E.2d 153 46 Ill.2d 576 The CITY OF CHICAGO, Appellee,
v.
Vincent GERACI et al., Appellants. Nos. 42278--42288. Supreme Court of Illinois. Nov. 17, 1970.

[46 Ill.2d 577]

Page 154

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.

SCHAEFER, Justice.

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.

[46 Ill.2d 578] The applicable ordinance provides: 'It shall be unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. Any person violating any provision of this section shall be fined not less than $20.00 nor more than $200.00 for each offense. Obscene for the purpose

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of this Section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (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 [46 Ill.2d 579] 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.' (Sunshine Book Co. v. Summerfield (D.D.C.1955), 128 F.Supp. 564, 565--566, aff'd, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957), rev'd per curiam, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (1958). See also Rosenbloom v. Virginia (1967), 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312 (per curiam); Felton v. City of Pensacola (1968), 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220, rev'g per curiam 200 So.2d 842 (Dist.Ct.App.Fla.1967).) 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 magazine 'Hellenic Sun Number Two' is a collection of photographs of undressed men. Some are in color. There is one of a group of boys. They are posed in the out-of-doors, but the generally languid models are not engaged in outdoor activity. In the composition of the photographs, the genitals of the models are made the focal points [46 Ill.2d 580] of the pictures.' 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

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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...