Com. v. Zone Book, Inc.

Decision Date13 April 1977
Citation372 Mass. 366,361 N.E.2d 1239
PartiesCOMMONWEALTH v. ZONE BOOK, INC. Supreme Judicial Court of Massachusetts, Suffolk
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel J. O'Connell, Boston, for defendant.

Kevin F. O'Donnell, Asst. Dist. Atty., for the Commonwealth.


HENNESSEY, Chief Justice.

The Commonwealth prosecuted the defendant on two complaints charging possession of obscene magazines with intent to distribute them in violation of G.L. c. 272, § 29. The defendant filed motions to dismiss the complaints, alleging that the matter possessed constituted books, not magazines, so that the Commonwealth's actions pursuant to § 29 were premature. General Laws c. 272, § 28I, requires as a condition precedent to proceedings under § 29, involving 'books,' the in rem procedures set forth in G.L. c. 272, §§ 28C, 28D, 28E, 28G, 28H. 1 After denial of these motions the defendant successfully petitioned, pursuant to G.L. c. 211, §§ 3, 4A, for transfer of the cases to this court. A single justice of this court ordered the cases reserved and reported to the full court for decision.

In August, 1974, two Boston police department detectives entered premises controlled by the defendant looking for obscene materials. They purchased two printed publications, each consisting of more than forty pages, bound by staples, containing a series of photographs with incidental text but no advertising or variety in subject matter. 2 The publications do not identify their photographers, editors, or publishers. One of them, has, on its cover, a volume number I and the 'warning(:) if you find sex offensive, do not purchase this magazine.' The publications themselves were offered in evidence.

Two witnesses, a retail bookstore manager and a public librarian, agreed that they would classify these publications as paperback photograph books, largely because neither publication gave any indication of serialization or periodicity. The witnesses also considered that the publications' monographic contents, permanent staple bindings, and formats demonstrate that they are books, not magazines. The Commonwealth does not maintain that it proceeded against these publications under §§ 28C--28H before instituting § 29 proceedings.

The defendant argues that these publications are 'books' within the ordinary and approved meaning of that word and that this meaning comports with the purposes of G.L. c. 272, §§ 28--32. Because the Commonwealth failed to comply with the requirements of G.L. c. 272, § 28I, the defendant maintains the trial judge erred in denying the motions to dismiss. We agree.

We conclude on the evidence offered below that the publications involved herein are books and are not magazines, as matter of law, and therefore the Commonwealth was required to meet the condition of G.L. c. 272, § 28I, before instituting § 29 proceedings against dissemination of these publications. Hence, the defendant's motions to dismiss the complaints must be granted.

1. General Laws c. 272, § 28I, states that '(t)he procedures set forth in sections twenty-eight C, twenty-eight D, twenty-eight E, twenty-eight G and twenty-eight H shall be a condition precedent to the institution of any proceedings pursuant to section twenty-nine or thirty for dissemination of obscene books.' Section 28C, as appearing in St.1974, c. 430, § 3, provides for in rem proceedings against books believed to be obscene, with notice by publication generally and by registered mail 'to the publisher . . ., to the person holding the copyrights, and to the author, in case the names of any such persons appear upon said book . . ..' Section 28D allows anyone interested in a book's dissemination to file an answer, while § 28E permits adjudication of obscenity by general default if no person answers. Sections 28F, 28G, and 28H deal with the in rem hearing itself and its legal effects.

The statutory scheme does not define 'books,' although it defines 'matter' as comprising 'any printed material . . . including but not limited to, books, magazines, . . . pamphlets . . ..' G.L. c. 272, § 31, as appearing in St.1974, c. 430, § 12. When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. See Commonwealth v. Gove, 366 Mass. 351, 354, 320 N.E.2d 900 (1974); Franki Foundation Co. v. State Tax Comm'n, 361 Mass. 614, 617, 281 N.E.2d 865 (1972). We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions.

The words 'books' and 'magazines' have established definitions in other legal contexts. In 1912, Mr. Justice Holmes, construing Federal postal statutes, said 'generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and, perhaps, have an appreciable size.' Smith v. Hitchcock, 226 U.S. 53, 59, 33 S.Ct. 6, 8, 57 L.Ed. 119 (1912). A United States District Court cited this language in the context of the Montana libel statute, looking also at the Montana Legislature's purpose in giving special treatment to books (opportunity to correct libellous matter). Fifield v. American Auto. Ass'n, 262 F.Supp. 253, 255--257 (D.Mont.1967). Similarly, looking at the legislative purpose in dealing specifically with 'magazines,' courts generally have defined 'magazines' as a subspecies of periodicals, emphasizing their periodicity, their continuity as to title and nature of contents from issue to issue, and their authorship usually by an editorial staff rather than by a single author. See id. at 256--257 (libel statute); Application of Wings Publication Co., 148 F.2d 214, 215, 32 CCPA 926 (1945) (trademark statute); Business Statistics Organizations, Inc. v. Joseph, 299 N.Y. 443, 449, 87 N.E.2d 505 (1949) (sales tax ordinance). These definitions are consistent with the common understanding of the words at issue as well as the dictionary definitions thereof. 3

The apparent legislative purpose in especially protecting books is some indication, as shown in our reasoning below, that the Legislature intended to emphasize periodicity as a distinguishing criterion between books and magazines.

It appears that the Legislature intended that potential defendants under G.L. c. 272, §§ 29, 30, should receive the clearest possible notice of their liability for dissemination of obscene materials, as long as such notice would not compromise other policy considerations of the statutory scheme. Cf. Commonwealth v. 707 Main Corp., --- Mass. ---, ---, a 357 N.E.2d 753 (1976). In rem procedures provide disseminators with the clearest possible notice that the materials they disseminate are obscene and therefore dissemination constitutes prohibited conduct. 4 See Paris Adult Theatre I v Slaton, 413 U.S. 49, 54, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). These procedures, while providing constitutionally preferable notice, are characteristically expensive and time consuming. The Legislature apparently has concluded that the virtues of in rem notice outweigh the procedure's time and expense defects when liability for dissemination of 'books' is involved, but, when other matter is involved, that the needs for effective enforcement and fiscal restraint override the value of in rem notice. Thus, the desirability of unambiguous notice of a book's obscenity outweighs the risk that the delay inherent in in rem proceedings will result in continued availability for a few months of one obscene publication. On the other hand, the value of constitutionally unnecessary notice may not outweigh the risk that delay for in rem proceedings to suppress an obscene magazine will result in an automatic proliferation of obscene magazines available to the public at low prices through a widespread distribution system. Hence, the element of periodicity which has distinguished books from magazines in other contexts and which had accepted usage prior to the enactment of G.L. c. 272, §§ 28C--32, may be thought to have direct relevance to the legislative purpose in providing in rem procedures for the adjudication of books' obscenity. 5

We conclude that a substantial printed publication is a book for the purposes of G.L. c. 272, § 28C--31, if it is complete in itself, betraying no evidence of continuation with publications of a similar nature issued at regular periodic intervals. A motion to dismiss proceedings under § 29 or § 30 must be granted when the defendant proves that the publication disseminated fits the above definition and that the prosecutor failed to follow the procedures set forth in §§ 28C, 28D, 28E, 28G, and 28H. G.L. c. 272, § 28I.

2. The defendant in these cases filed timely motions to dismiss alleging that the putatively obscene publications are books and that the requirements of G.L. c. 272, § 28I, have not been met. It presented evidence of completeness and lack of periodicity through the testimony of people accustomed to classifying publications by genre and through the lack of indications of continuity or serialization in the publications themselves. The prosecution presented evidence that the publications have glossy covers, stapled bindings, abbreviated texts unrelated to the photographs which constitute the major content therein, few words, no author or publisher or copyright designation, and, on the cover of one publication, a volume number and the designation 'magazine.'

The publications were properly admissible as direct evidence of their own completeness or periodicity. A court may examine publications for evidence of continuity with other publications, and publications themselves can constitute sufficient evidence thereof. In this case, there was no evidence of serialization beyond a volume number on one publication. Since many books are published in...

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