Com. v. 707 Main Corp.

• Decision Date: 23 November 1976
• Citation: 371 Mass. 374,357 N.E.2d 753
• Parties: , 2 Media L. Rep. 1231 COMMONWEALTH v. 707 MAIN CORP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 753

357 N.E.2d 753

371 Mass. 374, 2 Media L. Rep. 1231

COMMONWEALTH

v. 707 MAIN CORP.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 13, 1976.

Decided Nov. 23, 1976.

Charlotte Anne Perretta, Boston, for defendant.

John D. Keeton, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

A judge of the District Court of Fitchburg, in August, 1974, found the defendant guilty on two complaints charging violations of G.L. c. 272, § 29, the criminal obscenity statute. The complaints were issued for violations which allegedly occurred on July 5, 1974, and on July 11, 1974. They involved the same subject matter, the motion picture film entitled 'Deep Throat.' The defendant appealed the convictions to the Superior Court.

On December 17, 1974, a jury trial on both complaints commenced in the Superior Court. The defendant filed as to both complaints motions to dismiss which were denied and exceptions were duly noted.

At the close of the Commonwealth's case, which included a showing of the motion picture before the jury, the defendant moved for directed verdicts on both complaints. The motions were denied and exceptions duly noted. The defendant presented no evidence and rested at the conclusion of the Commonwealth's case. On December 18, 1974, the jury returned a verdict of guilty on each complaint.

The defendant makes no contention that the jury were not warranted in concluding that the motion picture 'Deep Throat' was obscene, and the uncontroverted summary in the record as to the content of the motion picture confirms the correctness of this approach. However, the defendant contends that its motions for dismissal and for directed verdicts were improperly denied for three reasons. First, a prior civil proceeding against this defendant under G.L. c. 272, § 30, collaterally estopped the Commonwealth from proceeding criminally under G.L. c. 272, § 29. Second, G.L. c. 272, §§ 28C--31, are facially unconstitutional because the disparity in procedural protections afforded books and other materials violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Third, G.L. c. 272, §§ 28--31, are facially unconstitutional because the overbroad and vague statutory definitions of obscenity and knowledge violate the First Amendment to the United States Constitution and the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution.

We conclude that the Massachusetts obscenity statutes, G.L. c. 272, §§ 28C--31, as appearing in St.1974, c. 430, are constitutional facially and as applied to this case. ¹ We further conclude that there was no error in the denial of the defendant's motion to dismiss and motions for directed verdicts. The judgments therefore must be affirmed.

1. Estoppel.

We turn first to the defendant's contention that the judgment of the Superior Court in a proceeding against it pursuant to G.L. c. 272, § 30, collaterally estopped the criminal proceedings below. After a trial on the merits in October, 1974, the judge refused to enjoin this defendant and two other defendants from showing 'Deep Throat' in their movie theatres because the plaintiff district attorneys had failed to prove that the matter was obscene. The plaintiffs appealed from the judgment and in an opinion decided today we reverse the judgment. District Attorney for the N. Dist. v. Three Way Theatres Corp., --- Mass. ---, ^a 357 N.E.2d 747. The criminal trial and conviction occurred while the appeal of the civil proceeding was pending.

The United States Supreme Court has suggested that State law determines the collateral effect of prior findings of nonobscenity in subsequent proceedings. Miller v. California, 413 U.S. 15, 34 n. 14, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As a general rule, Massachusetts has subscribed to the doctrine of res judicata for the same cause of action between the same parties or those in privity with them and to the doctrine of collateral estoppel for separate causes of action. Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148, 128 N.E. 177 (1920). It can be argued that the mere taking of an appeal from the prior judgment, as occurred in this instance, has no effect on the operation of these principles. ² However, that reasoning is not apposite here, because we conclude that the obscenity statutes themselves are controlling as to this issue.

By specifically providing that the § 30 proceeding is in addition to and not a condition precedent to a § 29 criminal proceeding, the Legislature indicated its desire to leave as many procedural and remedial options open to prosecutors as possible. It established a civil proceeding which would provide notice of potential criminal liability to disseminators of matter alleged to be obscene, while reserving for law enforcement officials the right to use criminal proceedings as a primary enforcement tool when necessary. In addition, it provided for concurrent use of civil and criminal proceedings so that courts could enjoin further acts in possible or proven violation of c. 272, § 29.

In this case public officials used the two types of enforcement proceedings concurrently. The same acts, commercial showings of 'Deep Throat' in early July, 1974, formed the bases for both proceedings. Thus, the defendant's reliance on the civil judgment in its favor played no role in its allegedly criminal conduct. ³ Nor did public officials harass the defendant, successful in one forum, with a succession of suits which involved lengthy, expensive, and repetitive litigation. Both trials were completed within six months of the allegedly illegal acts. Rather, these public officials proceeded both to prosecute the theatres for showing a movie they thought clearly violated § 29 and to enjoin the movie's further public availability.

Thus the Legislature, making enforcement through concurrent use of civil and criminal proceedings available to prosecutors, did not intend that the first proceeding to reach judgment would estop further action in the second proceeding. Such an estoppel effect would make concurrent proceedings meaningless. In addition, we note that common sense indicates that we should give no estoppel effect to a judgment we reverse today against these criminal proceedings which resulted in error-free judgments.

2. Equal Protection.

Next we turn to the defendant's contention that G.L. c. 272, §§ 28C--31, violate the equal protection clause of the United States Constitution and so are unconstitutional facially and as applied in this case. The statutory scheme requires a prior civil proceeding under §§ 28C--28I to determine whether a book is obscene as a condition precedent to the criminal prosecution of a person for the dissemination of an obscene book. Decrees under § 28 constitute conclusive evidence on the issue of criminal knowledge. Disseminators of other matter can be prosecuted criminally without a prior civil hearing to determine if the matter in question is obscene. As a result, books and their disseminators receive greater procedural protection than other materials and their disseminators. The defendant maintains that this mode of regulation bears no relationship to the compelling object of the statute, is not the least restrictive means of attaining its object and, therefore, violates the equal protection provisions of the Federal and State Constitutions. This argument assumes that strict scrutiny is the appropriate standard by which to review this statutory scheme. We disagree.

This court affords statutes a presumption of constitutionality, upholding a statutory classification if any rational argument supports it, unless the statute affects a fundamental right. Commonwealth v. Henry's Drywall Co., --- Mass. ---, ---,^b 320 N.E.2d 911 (1974). The standards applicable to statutes affecting fundamental rights are those used by the defendant. See Commonwealth v. O'Neal, --- Mass. ---, ---,^c 327 N.E.2d 662 (1975); Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). However, since obscenity does not constitute constitutionally protected speech, Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), statutes regulating obscenity do not purport to affect the fundamental rights of speech and expression. Nevertheless, because a fine line separates obscenity from constitutionally protected expression, statutes regulating obscenity must be limited in their scope, Miller v. California, 413 U.S. 15, 23--24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and appellate courts (should) conduct an independent review of constitutional claims when necessary' to protect First Amendment values. Id. at 25, 93 S.Ct. at 2615. ⁴

The equal protection claims asserted by the defendant in this case do not involve First Amendment values. The classifications distinguish between species of materials, not between protected and unprotected expression. As discussed below, the procedural protections afforded disseminators of 'other matter' are constitutionally adequate. Contrast McKinney v. Alabama, 424 U.S. 669, 673, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976). Thus, the ability to litigate the line drawn between obscenity and protected speech is retained. In addition, the statutory definition of obscenity (unprotected expression) meets the definitional requirements of Miller v. California, 413 U.S. 15, 23--26, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), as clarified in Jenkins v. Georgia, 418 U.S. 153, 160--161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). The statutes apply only to depictions of sexual conduct described therein. See G.L. c. 272, § 31.

Having decided that the obscenity definition and procedures are adequate to protect constitutional values, we apply our traditional rational basis test, see Commonwealth v. Henry's Drywall Co., --- Mass ---, --- - ---^d , 320 N.E.2d 911 ...