City of Madison v. Nickel
| Decision Date | 20 December 1974 |
| Docket Number | No. 339,339 |
| Citation | 66 Wis.2d 71,223 N.W.2d 865 |
| Parties | CITY OF MADISON, Respondent, v. Helen T. NICKEL, Appellant. |
| Court | Wisconsin Supreme Court |
Percy L. Julian, Jr., Madison, Shellow & Shellow, Milwaukee, of counsel, for appellant.
Edwin Conrad, City Atty., Larry W. O'Brien, Deputy City Atty., Madison, for respondent.
The circuit court for Dane county affirmed a judgment of the county court of Dane county which adjudged that the defendant, Helen T. Nickel, had violated the City of Madison obscenity ordinance as to all four counts charged in the complaint. The county court imposed a forfeiture of $250 for each violation.
On June 14, 1971, an officer of the Madison Police Department entered Otto's News Stand and Fun Shop, located in the City of Madison, and selected and purchased four magazines from the defendant. The four magazines were entitled: 'The Swinging Set,' 'Tempo,' 'Black and White Journal,' and 'Sundisk.' The officer gave the defendant a twenty dollar bill; the defendant looked at the front of each magazine, added up the price and gave the officer his change. The officer asked for and was given a receipt. He also informed the defendant that he was a police officer and obtained the name of the defendant.
After the circuit court affirmed the judgment of the county court, the defendant appealed.
The defendant has raised three issues:
1. Is the Madison ordinance as now written unconstitutional?
2. Was the evidence sufficient to prove scienter or knowledge on the part of the defendant that the magazines were obscene?
3. Can the defendant be convicted of more than violation of the obscenity ordinance arising from a single transaction?
The Madison obscenity ordinance, sec. 26.04 of the General Ordinances of Madison, is as follows:
'OBSCENE LITERATURE, PICTURES, ETC.
'(1) Definitions.
'(a) 'Obscene.' Material is obscene if:
'1. Its dominant theme taken as a whole appeals to a prurient interest in six, and
'2. It is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matter, and
'3. It is utterly without redeeming social value.
'(b) 'Knowingly.' A person acts knowingly if he has general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of the character and content of any material described herein which is reasonably susceptible of examination.
'(2) It shall be unlawful for any person knowingly:
'(a) To sell, loan for a monetary consideration, deliver or provide, or offer or agree to sell, loan for a monetary consideration, deliver or provide, any obscene writing, picture, record or other representation or embodiment of the obscene; or
'(b) To present or direct or participate in an obscene play, dance or performance or knowingly to permit the same on any premises owned or operated by him or under his control; or
'(c) To publish, exhibit, distribute, give away or otherwise make available any obscene material; or
'(d) To possess any obscene naterial for purposes of sale or other commercial dissemination; or
'(e) To sell, advertise or otherwise commercially disseminate material, whether or not obscene, by representing or suggesting that it is obscene.'
This ordinance was recreated into its present form in 1969. It is obvious that in enacting its obscenity ordinance in this form the city council was attempting to and did conform to the then latest United States Supreme Court definition of obscenity. It is, almost verbatim, the definition announced in Memoirs v. Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1, and commonly referred to as the Roth-Memoirs test.
The United States Supreme Court in Memoirs, page 418, 86 S.Ct. page 977, stated that in order for obscenity to be found:
'. . . it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.'
The Roth-Memoirs test was repudiated, however, in Miller v. California (1973), 413 U.S. 15, 24, 93 S.Ct. 2607, 2614--2615, 37 L.Ed.2d 419, where the court articulated a new standard:
'. . . we now confine the permissible scope of such regulation to works which depict or describe sexual conduct.
That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . .' (Emphasis supplied.)
The defendant contends that the Miller formulation has wrought three significant changes: (1) The obscenity law must specify in precise terms the types of acts or depictions which may be deemed obscene; (2) the concept of 'community standards' should embody a 'state' as opposed to a 'national' standard; and (3) the requirement that the material be 'utterly without redeeming social value' has been rejected and replaced by a requirement that the material lacks 'serious literary, artistic, political, or scientific value.'
The same contentions were raised by the petitioner in State ex rel. Chobot v. Circuit Court (1973), 61 Wis.2d 354, 361, 212 N.W.2d 690, wherein this court considered the constitutionality of the Wisconsin obscenity statute, sec. 944.21, which had incorporated the Roth-Memoirs test by judicial construction, State v. Kois (1971), 51 Wis.2d 668, 188 N.W.2d 467, in view of Miller, supra. In Chobot, supra, we noted that this court never accepted a 'national' community standard. In Court v. State (1974), 63 Wis.2d 570, 578, 217 N.W.2d 676, this court adopted a statewide community standard. We also pointed out in Chobot, supra, 61 Wis.2d pages 365, 366, 212 N.W.2d page 696, that the 'utterly without' portion of the Roth-Memoirs test was not adhered to in this state, but rather the court would look to the material in question to determine whether it had a 'social value that is discernable to a reasonable finder of fact . . . not mere makeweight contrived to avoid the operation of the rule.' State v. I, A Woman--Part II (1971), 53 Wis.2d 102, 119, 191 N.W.2d 897. With respect to this requirement, the court in Chobot, supra, concluded at page 366 of 61 Wis.2d at page 696 of 212 N.W.2d, that:
'. . . So far as Wisconsin is concerned, all Miller has done is to limit the concept of 'social value' to a more restrictive literary, artistic, political or scientific sense; all of which are of social value. . . .'
The court held in Chobot that the only inadequacy in sec. 944.21, Stats., was that it did not contain an express definition of prohibited depiction of sexual conduct. The problem was corrected by the court's 'authoritative construction' specifically authorized by Miller, supra. By this court's construction, the word 'obscene' was defined to mean:
Chobot, supra, pages 369, 370, 212 N.W.2d page 698.
In this construction, the court incorporated all the Miller requirements and rejected the Roth-Memoirs standards, even though the only significant change was the definition of prohibited conduct.
Such result was relatively easy to achieve with respect to sec. 944.21, Stats., because the term 'obscene' was not defined by statute, but defined by this court's construction. 1 However, sec. 26.04 of the Madison General Ordinances contains a definition which is exactly the same as the now constitutionally infirm Roth-Memoirs definition, and which contains no litany of the now proscribed conduct. We conclude, therefore, that the ordinance's definition of obscenity does not comport with the latest United States Supreme Court's constitutional construction in Miller and this court's definition of obscenity in Chobot, supra.
It does not follow, however, that the entire ordinance must fall. Sec. 26.13 of the Madison General Ordinances provides:
...
To continue reading
Request your trial
-
State ex rel. Briggs & Stratton Corp. v. Noll
...remainder of the legislation as to require the entire law to be invalidated is a question of legislative intent. City of Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974); State ex rel. Milwaukee County v. Boos, 8 Wis.2d 215, 99 N.W.2d 139 Some cases from other jurisdictions are in con......
-
State v. Lechner
...and place of two types of illicit drug constituted two separate punishable counts of possessing a dangerous drug); Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974)(holding four obscene magazines sold to the same person at the same time and place constituted four separate violations of......
-
State v. Zarnke
...of this case. During oral arguments the State suggested that this court did combine these two saving measures in City of Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974) and should do so again here. We will not extend our actions in Nickel to this ¶32 In Nickel, this court was called ......
-
State v. Rabe
...separated by twenty minutes of conversation, constituted two rapes and was not a continuous unitary transaction); Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974) (four obscene magazines sold by the defendant to the same person at the same time and place held to be four violations of ......