Com. v. Horton

• Decision Date: 23 April 1974
• Parties: COMMONWEALTH v. George C. HORTON (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 316

310 N.E.2d 316

365 Mass. 164

COMMONWEALTH v. George C. HORTON (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 5, 1973.

Decided April 23, 1974.

Alvin Pudlin, New Britain, Conn. (Leonard R. Skvirsky, Springfield, with him), for defendants. St.1959, c. 492, § 2, reads as follows: 'Whoever imports, prints, publishes, sells or distributes

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

WILKINS, Justice.

The defendant Horton, an employee in a Quincy bookstore, was indicted for the sale in August, 1971, of 'certain obscene and impure magazines entitled 'Love Theme' and 'Young Stuff.' The defendant O'Brien, the owner of the bookstore, was indicted on the same day for possession of 'certain obscene, indecent, or impure magazines . . . (the same magazines) with intent to sell (them).' The cases were tried together in May, 1972, and the defendants were found guilty. Each defendant was placed on probation for one year; O'Brien was fined $1,000.

The defendants claimed various exceptions at trial but have argued before us, in connection with their motion for directed verdicts, only that G.L. c. 272, § 28A, ² is unconstitutionally vague and overbroad and that it would be unconstitutional for this court now to construe § 28A so as to be applicable to acts committed by them in 1971. Basically the defendants argue that § 28A does not satisfy the First Amendment standards prescribed in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), decided on June 21, 1973; that our decisions have not interpreted § 28A so as to meet the constitutional requirements set forth in the Miller case; and that it would be improper for this court now to interpret § 28A retroactively so as to import into § 28A that specificity which under the Miller case must exist either in the words of the statute or in authoritative judicial construction of the statute. Miller v. California, supra, 24, 93 S.Ct. 2607.

The defendants were tried under the so called Roth-Memoirs standard. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass. 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). That standard required three elements to be established in order to obtain a constitutionally justified obscenity conviction. The prosecution had to establish 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.' 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., supra, 418, 86 S.Ct. 977.

No justice of the United States Supreme Court now endorses the Roth-Memoirs test as the measure of First Amendment protection in obscenity cases. See Miller v. California, supra, 413 U.S. 23, 93 S.Ct. 2607; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). A bare majority of those Justices have arrived at a new set of basic guidelines. Those guidelines are intended to define the permissible scope of State statutes designed to regulate works which depict or describe sexual conduct. Miller v. California, supra, 413 U.S. 24, ³ 93 S.Ct 2607. The applicable State law, 'as written or authoritatively construed,' must specifically define the sexual conduct whose depiction or description is interdicted. Miller v. California, supra, 24, 93 S.Ct. 2607. The new basic guidelines, which also set forth a three-pronged test, call for the trier of fact to determine '(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.' Emphasizing that it is not its function to propose regulatory schemes for the States, the court gave 'a few plain examples' of what a State statute could define for regulation under part (b) of the new guidelines. ⁴

Applying the Miller standards to G.L. c. 272, § 28A, it is manifest that § 28A does not define the sexual conduct whose display or description is intended to be prohibited. The Mill opinion, however, recognizes that authoritative judicial construction of an obscenity statute may fulfil the constitutional requirement that the State law specify that sexual conduct which is prohibited. Some State courts in post-Miller decisions have been able to sustain obscenity statutes by concluding that previous judicial construction of the applicable statute has already provided the specificity required by the Miller case. ⁵ Other decisions have read into the applicable obscenity statute those definitions of specific sexual conduct which appear in the Miller opinion (see fn. 4 above). ⁶ Some of the decisions upholding State obscenity statutes have been made in the face of forceful dissents. ⁷ Other courts, fewer in number, have declined to provide a judicial rescue for statutes which by their terms failed to meet the Miller requirement of specificity. ⁸ The basic question here is what course this court should now follow.

In the absence of any legislative redefinition of obscenity, persons concerned about the application to them of Massachusetts obscenity statutes have been obliged in recent years to gauge the legality of their intended conduct by First Amendment standards expressed by, or anticipated from, the Supreme Court of the United States. ⁹ During a time when First Amendment rights were expanding so as to reduce the scope of what might constitutionally be regulated as obscene, the application of new standards was not unfair to those affected by obscenity laws and no serious constitutional problems of 'vagueness' were raised. We believe, however, that with the Miller decision the situation has changed.

In at least one material respect the Miller case reduces the area of First Amendment protection from that existing under the Roth-Memoirs test. ¹⁰ Under the Roth-Memoirs standard there had to be an affirmative showing that the materials were 'utterly without redeeming social value.' See Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney Gen. of Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). Under the Miller test the work must lack 'serious literary, artistic, political, or scientific value.' Today a work not utterly without social value but of less than serious literary, artistic, political, or scientific value may be prohibited as obscene, whereas before it could not. ¹¹

A review of our decisions indicates that we have not authoritatively construed § 28A in a way which has 'specifically defined' the sexual conduct whose portrayal is barred by statute. Certainly our decisions fall far short of the degree of definitiveness appearing in statutes in Oregon and Hawaii, whose definition of prohibited conduct was at least qualifiedly endorsed in the Miller opinion (supra, 413 U.S. 24, fn. 6, 93 S.Ct. 2607). Our decisions also fall far short of the 'plain examples' given in the Miller opinion (see fn. 4 above). The most we have ever said was said in a negative way in a rescript opinion complying with what we viewed as the requirements of the Supreme Court of the United States. See Commonwealth v. Donahue, 358 Mass. 803, 263 N.E.2d 589 (1970) ('(n)one of the pictures, however, explicitly portrayed copulation or other sexual congress'). See also Commonwealth v. Palladinoe, 358 Mass. 28, 32, 260 N.E.2d 653 (1970), and COMMONWEALTH V. BITSOCOS, MASS. (1972), 281 N.E.2D 227,^A for even more general characterizations in the same vein. ¹² The opinion in the Donahue case was not designed as an authoritative construction of our statute (G.L. c. 272, § 28A) so as to provide a definition of proscribed sexual conduct. The Court of Appeals for the First Circuit was correct in indicating in Literature, Inc. v. Quinn, 482 F.2d 372, 375 (1973), that this court has not 'specifically defined' (see Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. 2607) those activities which under § 28A may not be depicted or described. It is therefore clear that the opportunity is not fairly available to us, as it was in certain other States (see fn. 5 above), to conclude that the constitutional requirements of specificity have been met by our decisions previous to the Miller decision. ¹³

We decline to undertake now to furnish, even on a prospective basis, a judicial interpretation of that sexual conduct which § 28A provides should not be portrayed. To do so would require us to engage in a function which we, perhaps more than many courts, have been traditionally reluctant to perform. It is true that, despite traditional reluctance, this court has for many years undertaken to protect such vestiges of our obscenity statutes as it could from the erosion of waves of constitutional onslaught. In doing so we have suggested that our obscenity statutes apply as far as the Federal Constitution may permit. That itself has been a standard of some uncertainty, subject to abrupt change, as the Miller case so clearly shows. It may seem strange that we appear to have abandoned the struggle just as the tide may have turned. It is, however, for that very reason that we decline further to engage in the function of saving judicially a statute which is of great ambiguity of its face. The abandonment of the Roth-Memoirs test has removed the basis upon which this court has attempted to save § 28A by judicial construction.

People are...