D & J Enterprises, Inc. v. Michaelson

• Citation: 401 A.2d 440,121 R.I. 537
• Decision Date: 14 May 1979
• Docket Number: No. 78-372-A,78-372-A
• Court: United States State Supreme Court of Rhode Island
• Parties: D & J ENTERPRISES, INC. et al. v. Julius C. MICHAELSON, Attorney General et al. ppeal.

Page 440

401 A.2d 440

121 R.I. 537

D & J ENTERPRISES, INC. et al. v. Julius C. MICHAELSON, Attorney General et al.

No. 78-372-Appeal.

Supreme Court of Rhode Island.

May 14, 1979.

McKinnon & Fortunato, Stephen J. Fortunato, Jr., Pawtucket, DiSandro Associates, Guy R. Bissonnette, Sandra Blanding, Providence, for amicus curiae, The Rhode Island Affiliate of the American Civil Liberties Union, for petitioners.

Dennis J. Roberts, II, Atty. Gen., Allen P. Rubine, Asst. Atty. Gen., John S. Foley, Sp. Asst. Atty. Gen., for respondents.

Nugent & Nugent, J. Joseph Nugent, Jr., Providence, for Harold E. Doran, amicus curiae.

John S. Brunero, Town Sol., West Warwick, for William A. Gallucci, amicus curiae.

Ronald H. Glantz, City Sol., Providence, Joseph A. Rotella, Asst. City Sol., Cranston, for Angelo P. Ricci, amicus curiae.

OPINION

JOSLIN, Justice.

This is a petition filed in the Superior Court under the Uniform Declaratory Judgments Act. ¹ It seeks a declaration of the constitutionality of this state's obscenity statute, G.L.1956 (1969 Reenactment) §§ 11-31-1 to 13, as amended by P.L.1978, ch. 218 (the Act), that subjects to criminal punishment anyone who willfully or knowingly promotes obscene material for the purpose of commercial gain. It also seeks an injunction prohibiting the respondents from procuring any information or indictment against the petitioners and from arresting them for alleged violations of the Act. The parties filed an agreed statement of facts in the Superior Court and the case was then certified ² to this court for hearing pursuant to § 9-24-25. ³

According to the agreed statement of facts, the petitioners are "business entities and individuals which own and operate bookstores within the State of Rhode Island that sell books, magazines and films, and also provide opportunity for viewing films on their premises in private booths, which books, magazines and films have sexual themes and often describe or visually depict nude persons engaging in various forms of sexual activity * * *." The named respondents are the state Attorney General and the police chiefs of both Providence and West Warwick, but the only respondent to file a brief and argue was the Attorney General.

The statement of facts further indicates that the Providence police chief has publicly vowed to enforce the challenged Act "vigorously with the objective of ridding Providence of what he consider(s) to be 'pornographic' material"; that "(d)etectives of the Providence Police Department made visits to the bookstores of all the (petitioners) who have bookstores in Providence and indicated to the personnel of those bookstores that it was their intention to ultimately terminate the sale and display of what they believed to be 'pornographic' materials"; and, finally, that West Warwick police officers arrested an officer and an employee of one of the corporate petitioners and charged each of them with violation of § 11-31-1 of the Act.

The challenged Act was enacted in response to the United States Supreme Court's decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and it is against the constitutional standards laid down in Miller that the Act must be measured. In that case, the Court refined the legal definition of obscenity that had emerged from Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). Besides rejecting the unworkable Roth-Memoirs requirement that, to be legally obscene, a work must be utterly without redeeming social value, the Miller Court set out a new framework of revised standards to guide the states in separating what is obscene, and therefore subject to governmental regulation, from what is not obscene, and therefore constitutionally protected from all but the most minimal governmental interference. ⁴ 413 U.S. at 24-25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431. Because obscenity is not within the area of speech protected by the first and fourteenth amendments, Kois v. Wisconsin, 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 314-15 (1972); Roth v. United States, 354 U.S. at 485, 77 S.Ct. at 1309, 1 L.Ed.2d at 1507, ⁵ it was necessary to define it carefully in order to separate it from matter which is sexually oriented, but not obscene, and is therefore fully protected expression. Miller v. California, 413 U.S. at 23-24, 93 S.Ct. at 2614, 37 L.Ed.2d at 430. What emerged was a new constitutional blueprint with specific guidelines for isolating "hard core" pornography from protected expression.

In fashioning that blueprint, the Miller Court held that:

"(s)tate statutes designed to regulate obscene materials must be carefully limited. (citation omitted) As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed." Id. at 23-24, 93 S.Ct. at 2614-15, 37 L.Ed.2d at 430.

Further, the Court emphasized that the determination of what is obscene is the province of the jury, and announced that:

"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (citation omitted) (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." Id. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

In drafting the Rhode Island statute, the Legislature was clearly guided by Miller ; indeed, some of the statutory language quotes Miller verbatim. Intention alone, however, does not insure a constitutional result. In challenging the Act's constitutionality, petitioners contend that § 11-31-1, "endeavors to follow the standards for regulating obscenity outlined in Miller * * * but falls short of the mark in that it creates a Per se rule defining exactly what is obscene, or 'patently offensive sexual conduct,' rather than allowing the trier of fact to measure an individual work in question against 'contemporary community standards' in order to reach a specific conclusion in a particular matter." ⁶ The petitioners reach this conclusion because the words "sexual conduct" are preceded by the modifier "patently offensive," and they contend that the Legislature has thus determined that the various types of sexual conduct included in the list that follows the phrase are, by definition, patently offensive.

The Attorney General agrees that, under Miller, resolution of the highly sensitive question of whether a representation of sexual conduct is patently offensive is within the factfinder's discretion. ⁷ See413 U.S at 26, 93 S.Ct. at 2616, 37 L.Ed.2d at 432. He argues, however, that the Act, properly construed, does not restrict the jury from fulfilling that obligation. To evaluate these conflicting positions, we start with an examination of the language of the Act itself. The pertinent part of § 11-31-1 provides that:

" 'An obscene work' is a work which taken as a whole appeals to prurient interest in sex, which portrays sexual conduct in a patently offensive way, and which, taken as a whole, does not have serious value. In determining whether or not a work is an obscene work the trier of fact must find (a) that the average person, applying contemporary community standards find(s) that the work, taken as a whole appeals to the prurient interest and (b) that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by this chapter or authoritatively construed by the courts of this state as being a portrayal of patently offensive sexual conduct as that phrase is used in the definition of an obscene work and (c) that the work, taken as a whole, lacks serious value.

"The phrase 'Patently offensive sexual conduct ' shall be deemed to include any of the following described sexual conduct:

"(a) An act of sexual intercourse, normal or perverted, actual or simulated including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.

"(b) Sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed, in an act of apparent sexual stimulation or gratification.

"(c) Masturbation, excretory functions and lewd exhibitions of the genitals, including any explicit, closeup representation of a human genital organ or spread-eagle exposure of female genital organs." (Emphasis added.)

In adopting the challenged phraseology, the Legislature obviously did more than simply catalog what kinds of sexual conduct, if described or depicted in a work or show, may be subjected to a jury's scrutiny and possibly found obscene. ⁸ Had it merely compiled such a list and then allowed the factfinder to decide whether the targeted conduct is not only sexual but also patently offensive, it might have structured a properly limited regulatory scheme, because Miller directs that the kind of conduct that may be subject to regulation "(must be) specifically defined by the applicable state law." 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 430.

By defining the broader concept of "patently offensive sexual conduct," rather than the narrower term "sexual conduct," however, the Legislature established a conclusive presumption and predetermined that the average person, applying contemporary community standards, ⁹ would find such conduct patently offensive. This predetermination makes it impossible for juries hearing different cases that involve...