City of St. George v. Turner

• Decision Date: 23 September 1993
• Docket Number: No. 910309,910309
• Citation: 860 P.2d 929
• Parties: CITY OF ST. GEORGE, Plaintiff and Petitioner, v. Brent Allen TURNER, Defendant and Respondent.
• Court: Utah Supreme Court

Page 929

860 P.2d 929

CITY OF ST. GEORGE, Plaintiff and Petitioner, v. Brent Allen TURNER, Defendant and Respondent.

No. 910309.

Supreme Court of Utah.

Sept. 23, 1993.

Theodore W. Shumway, St. George, for City of St. George.

Alan D. Boyack, St. George and Michael P. Zaccheo, Salt Lake City, for Brent Allen Turner.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

STEWART, Justice:

This case is here on a writ of certiorari to review the decision of the Utah Court of Appeals in City of St. George v. Turner, 813 P.2d 1188 (Utah Ct.App.1991), which reversed a jury verdict convicting Brent Allen Turner of publicly displaying obscene material. We affirm the court of appeals.

A jury convicted Brent Turner, the proprietor of a record shop in St. George, Utah, of displaying obscene material in violation of section 2a(1) of St. George obscenity ordinance No. 2-77-2. Section 2a(1) of the ordinance makes it unlawful for a person to knowingly "[d]istribute, display publicly, furnish or provide to any person any obscene material or performance." Section 1a defines "obscene" as

any material or performance which, when taken as a whole and considered in the context of the contemporary standards of this community:

(1) Appeals to prurient interest in sex;

(2) Portrays sexual conduct in a patently offensive manner;

(3) Has no serious literary, artistic, political or scientific value.

Section 1e defines "sexual conduct" as the "lewd exhibition of the genitals, including any explicit close-up representation of a human genital organ or a spread eagle exposure of female genital organs."

Patrons of Turner's shop were allowed to use cans of spray paint to spray graffiti-like images and statements on four white bed sheets hung in the shop. The statements and symbols express radical, hostile, or vulgar views about life, death, sex, politics, and societal standards and institutions. However, there is no discernible unifying theme or organizational structure to the drawings and statements. The statements include phrases such as "nuke my ass," "total peace," "fuck authority," "no way out," "fuck you," "group sex," "burn the dead," "eat it eat me," "my right to the world," "your afraid face it," "die for yourself," "live-die," "airborne," "death & destruction," "run and hide death will find you," "sold your soul," "the end," "white flys will eat your flesh," "over kill," "hell house," and "kill for God." The depictions include skeletons, skulls, crosses, an ignited MX missile, peace symbols, grave stones, international prohibitive symbols over the words "life" and "drugs," a smiling face on a bat's body, a gun, a swastika, a door, a mushroom cloud, a moon, the number 13, and a shield with "AA" on it.

The two drawings that form the basis for the obscenity charge are sprayed in the bottom left-hand corner of one of the sheets. The first drawing depicts a naked woman reclining with her legs spread toward the viewer. The woman's pubic area consists of three or four black paint spots. The second drawing appears to be a close-up of the female genitalia, although it may be subject to different interpretations. The two crudely and indistinctly drawn depictions are not readily apparent from among the melange of other random drawings, phrases, and symbols. Above the drawing of the woman are the statements "why not let someone else think for you?" and "tuna factory xxx." To the left of the second drawing is a very small sign stating, "tunnel of love." A faint yellow arrow points from the sign to the female genitalia. In some proximity to the drawings are the statements "keep out," "not yours," and "its mine all mine."

A jury found Turner guilty of violating the St. George City obscenity ordinance, and the judge fined him $300. The court of appeals held that the ordinance was within constitutional limits but, on an "independent appellate review" of the record, held that the drawings, whether viewed individually or together with the other representations on the sheet, did not appeal to a prurient interest in sex or depict sexual conduct in a patently offensive manner.

The City of St. George argues that the court of appeals applied an incorrect constitutional standard and improperly undertook an independent review of the jury's finding that the drawings were obscene.

I. STANDARD OF APPELLATE REVIEW

To assure that First Amendment values are properly preserved, we apply strict scrutiny when reviewing whether material is obscene and therefore unprotected speech. Thus, the discretion ordinarily accorded to determinations made by a trier of fact is more narrow in an obscenity case. If a trier of fact incorrectly applies obscenity standards and allows constitutionally protected speech to be punished, an appellate court has an obligation to correct the error. See, e.g., Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980).

In Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973), the United States Supreme Court held that although questions of "prurient interest" and patent offensiveness under community standards are "essentially questions of fact," appellate courts have the ultimate power to conduct "an independent review of constitutional claims when necessary." ¹ The Miller Court looked to Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972), which reversed an obscenity conviction by making an independent review of photographs and a poem. The Kois court found that the photographs were rationally related to an accompanying article and that the poem was an attempt at serious art whose dominant theme was not an appeal to the prurient interest.

The Miller opinion also relied on language written by Justice Harlan in Roth v. United States, 354 U.S. 476, 498, 77 S.Ct. 1304, 1316, 1 L.Ed.2d 1498 (1957):

Every communication has an individuality and "value" of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppress[i]ble within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.

I do not think that reviewing courts can escape this responsibility by saying that the trier of facts, be it a jury or a judge, has labeled the questioned matter as "obscene," for, if "obscenity" is to be suppressed, the question of whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.

(Emphasis in original.) Thus, while it is true that judges possess no special expertise that qualifies them to supervise the private morals of the nation or to decide whether a particular speech or communication is good or bad for a local community, judges are better equipped by their training to appreciate and protect First Amendment values. The United States Supreme Court has recognized that judges generally

have a far keener understanding of the importance of free expression than do most government administrators or jurors, and they have had considerable experience in making value judgments of the type required by the constitutional standards for obscenity. If freedom is to be preserved, neither government censorship experts nor juries can be left to make the final effective decisions restraining free expression. Their decisions must be subject to effective, independent review, and we know of no group better qualified for that review than the appellate judges of this country under the guidance of the Supreme Court.

Jacobellis v. Ohio, 378 U.S. 184, 188 n. 3, 84 S.Ct. 1676, 1678 n. 3, 12 L.Ed.2d 793 (1964) (quoting Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 119 (1960)).

Because of the fundamental constitutional values at stake, the Supreme Court has rejected the "contention that a jury finding of obscenity vel non is insulated from review so long as the jury was properly instructed and there is some evidence to support its findings." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 506-07, 104 S.Ct. 1949, 1963, 80 L.Ed.2d 502 (1984). Rather, the Court has held that "substantive constitutional limitations govern." Id.

In this case, it follows that the court of appeals properly undertook an independent review of the jury's ruling. Whether the court of appeals correctly applied the constitutional test set out in Miller to the facts of this case is the issue we now address.

II. ELEMENTS OF OBSCENITY

Obscenity is not protected under the Free Speech Clause of the First Amendment to the United States Constitution. Miller v. California, 413 U.S. 15, 21, 93 S.Ct. 2607, 2613, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 484-85, 77 S.Ct. 1304, 1308-09, 1 L.Ed.2d 1498 (1957). Miller established a three-part test for determining whether material is obscene and thus falls outside the protection of the First Amendment:

(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.

Miller, 413...