Coleman v. Wilson

• Citation: 123 N.J.Super. 310,302 A.2d 555
• Parties: James M. COLEMAN, Jr., Monmouth County Prosecutor, Plaintiff, v. Edward N. WILSON, Sr. and C and V Theatre Corporation, Defendants.
• Decision Date: 21 March 1973
• Court: Superior Court of New Jersey

Page 310

123 N.J.Super. 310

302 A.2d 555

James M. COLEMAN, Jr., Monmouth County Prosecutor, Plaintiff, v. Edward N. WILSON, Sr. and C and V Theatre Corporation, Defendants.

Superior Court of New Jersey Chancery Division.

Argued March 21, 1973.

Decided March 21, 1973.

Malcolm V. Carton, First Asst. Prosecutor, for plaintiff (Frederick J. Kalma, Asst. Prosecutor, on the brief).

Herbert F. Kassner, of the New York Bar, New York City, for defendants (Michael S. Sodowick, Newark, attorney).

Alfred J. Luciani, Deputy Atty. Gen., for George F. Kugler, Jr., Atty. Gen., amicus curiae (David S. Baine, Deputy Atty. Gen., and Alfred J. Luciani, East Orange, of counsel and on the brief).

LANE, J.S.C.

Plaintiff, Prosecutor of Monmouth County, instituted this action under N.J.S.A. 2A:115--3.5, seeking injunctive relief to prohibit the further showing of two motion pictures, 'Deep Throat' and 'Love for Sale', and for surrender of the films to the Sheriff for destruction in accordance with N.J.S.A. 2A:115--3.7. Defendant Wilson is president of C and V Theatre Corporation which had shown the motion pictures to the public on various dates during February and March 1973. The Answer admits the showing of the motion pictures but denies that they are obscene. By counterclaim defendants seeks a declaration that N.J.S.A. 2A:115--1.1, N.J.S.A. 2A:115--2, N.J.S.A. 2A:115--3.4 and N.J.S.A. 2A:115--3.5 are unconstitutional. The matter is before the court on final hearing.

The issue raised by the counterclaim is the interpretation of N.J.S.A. 2A:115--1.1 and the determination of its constitutionality. It is agreed that if that provision is constitutional, the other statutes referred to are constitutional with the exception of N.J.S.A. 2A:115--3.5.

N.J.S.A. 2A:115--1.1 defines 'obscene':

The word 'obscene' wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.

This definition was contained in L.1971, c. 449, § 3. Before the adoption of that act 'obscene' had been defined:

(a) The word 'obscene' wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest.

(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is established that:

(1) The dominant theme of the material taken as a whole appeals to a prurient interest;

(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and

(3) The material is utterly without redeeming social value.

The Legislature in making the change spoke clearly as to its intent by stating in N.J.S.A. 2A:115--1.1a:

The Legislature finds that the standards of obscenity now enunciated in chapter 115 of Title 2A of the New Jersey Statutes as amended and supplemented in recent years is unnecessarily permissive and a hindrance to effective legal action against obscene matter. The Legislature further finds that such unnecessary permissiveness has resulted from the incorporation into New Jersey Statutes of language from influential opinions authored by certain United States Supreme Court justices; which language, however, does not represent binding majority decisions of the Supreme Court and, accordingly, need not bind the Legislature or the Judiciary of this State. The Legislature further finds that the most recent binding definition of 'obscenity' enunciated by the United States Supreme Court is represented by section 1 of chapter 165, laws of 1962, prior to subsequent amendments; and that said subsequent amendments ought to be repealed in order to reestablish a workable definition of 'obscenity' within the framework of our statutory law, and that certain other changes should be made in other statutes for the purpose of consistency.

In Cine-Com Theatres Eastern States, Inc. v. Lordi, 351 F.Supp. 42 (D.N.J.1972), a three-judge court declared that the definition of obscenity in N.J.S.A. 2A:115--1.1 was at variance with the definition of obscenity established by the United States Supreme Court and therefore unconstitutional. (351 F.Supp. at 49-50) On the other hand State v. Shapiro, 122 N.J.Super. 409, 300 A.2d 595 (Law Div.1973), held the definition constitutional. In that decision after analyzing the more recent cases of the United States Supreme Court, the Law Division concluded that the correct test of obscenity need not include a finding that the material was utterly without redeeming social value. In short, the Law Division agreed with the Legislature's expression of the state of the law in N.J.S.A. 2A:115--1.1a.

In A Book, Etc. v. Attorney General of Com. of Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the prevailing opinion stated:

We defined obscenity in Roth (Roth v. United States) in the following terms: '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S. (476) at 489, 77 S.Ct. (1304), at 1311 (, L.Ed.2d 1498). Under this definition, as elaborated in subsequent cases, three elements must coalesce: 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. (at p. 418, 86 S.Ct. at p. 977)

State v. Shapiro, Supra, refused to recognize as binding that definition, stating, 'At best, then, can it be said that four of the nine justices agreed with the rationale of the lead opinion.' (122 N.J.Super. at 429, 300 A.2d at 606) Although much can be said to support the reasoning of the Law Division's decision, this court does not feel free to agree.

The vast majority of courts considering the test of obscenity have felt themselves bound by the definition in A Book, Etc. v. Attorney General of Com. of Mass., Supra, 383 U.S. at 418, 86 S.Ct. 975. E.g., united States v. A Motion Picture Film, 404 F.2d 196, 199 (2 Cir. 1968); NGC Theatre Corporation v. Mummert, 107 Ariz. 484, 489 P.2d 823, 828 (Sup.Ct.1971); Stroud v. State, 273 N.E.2d 842, 847--848 (Sup.Ct.Ind.1971); Smith v. Commonwealth, 465 S.W.2d 918, 920 (Ct.App.Ky.1971); Woodruff v. State, 11 Md.App. 202, 273 A.2d 436, 443--444 (Ct. of Spec.App.1971); State v. Carlson, 291 Minn. 368, 192 N.W.2d 421, 426 (Sup.Ct.1971); Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840, 846 (Sup.Ct.1967), cert. den. 390 U.S. 948, 88 S.Ct. 1038, 19 L.Ed.2d 1140 (1968); Court v. State, 51 Wis.2d 683, 188 N.W.2d 475, 480 (Sup.Ct.1971).

State v. Hartstein, 469 S.W.2d 329 (Sup.Ct.Mo.1971) adopted the same reasoning as State v. Shapiro, Supra, and declined to apply social value as an independent test of obscenity. The United States Supreme Court granted certiorari and reversed in a memorandum decision citing Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Wiener v. Calif., 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539 (1971).

In Childs v. State of Oregon, 431 F.2d 272 (9 Cir. 1970), the State Court had convicted a defendant under an obscenity statute that did not include the social value test. The United States District Court granted a writ of habeas corpus. It was reversed by the Circuit Court which said that it found the materials obscene, using the three prong test. The United States Supreme Court granted certiorari and reversed in a memorandum decision citing Redrup v. New York, Supra 386 U.S. 767, 87 S.Ct. 1414. Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542 (1971).

The New Jersey Supreme Court in G. P. Putnam's Sons v. Calissi, 50 N.J. 397, 235 A.2d 893 (1967), accepted the test of obscenity set forth in A Book, Etc. v. Attorney General of Com. of Mass., Supra, 383 U.S. 413, 86 S.Ct. 975. See also, Keuper v. Wilson, 111 N.J.Super. 489, 493, 268 A.2d 753 (Ch.Div.1970); Lordi v. UA New Jersey Theatres, Inc., 108 N.J.Super. 19, 23--24, 259 A.2d 734 (Ch.Div.1969). The definition of obscenity contained in N.J.S.A. 2A:115--1.1 if read literally is unconstitutional.

It is the duty of the court to construe a statute, if possible, so as to render it constitutional. Camarco v. City of Orange, 61 N.J. 463, 466, 295 A.2d 353 (1972); Clifton v. Passaic County Board of Taxation, 28 N.J. 411, 422, 147 A.2d 1 (1958). In construing a statute the court must look to the true intention of the law. In Alexander v. N.J. Power & Light Co., 21 N.J. 373, 122 A.3d 339 (1956), the court stated:

The statute is to receive a reasonable construction, to serve the apparent legislative purpose. The inquiry in the final analysis is the true intention of the law; and, in the quest for the intention, the letter gives way to the rationale of the expression. The words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms. The particular words are to be made responsive to the essential principle of the law. When the reason of the regulation is general, though the provision is special, it has a general acceptation. The language is not to be given a rigid interpretation when it is apparent that such meaning was not intended. The rule of strict construction cannot be allowed to defeat the evident legislative design. The will of the lawgiver is to be found, not by a mechanical use of particular...