Hudson v. United States

• Decision Date: 14 November 1967
• Docket Number: No. 4268.,No. 4269.,4268.,4269.
• Citation: 234 A.2d 903
• Parties: Lillian M. HUDSON, Esther Sesman, Mariaelena Clark and Abe Attenson, Appellants, v. UNITED STATES, Appellee. Abe ATTENSON, Hanna Bernstein and Mary A. Tobin, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 903

234 A.2d 903

Lillian M. HUDSON, Esther Sesman, Mariaelena Clark and Abe Attenson, Appellants, v. UNITED STATES, Appellee.

Abe ATTENSON, Hanna Bernstein and Mary A. Tobin, Appellants, v. UNITED STATES, Appellee.

No. 4268.

No. 4269.

District of Columbia Court of Appeals.

Argued July 17, 1967.

Decided November 14, 1967.

John T. Bonner, Washington, D. C., for appellants.

Geoffrey M. Alprin, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Lawrence Lippe, Asst. U. S. Attys., were on the brief, for appellee.

Before HOOD, Chief Judge, and MYERS and KELLY, Associate Judges.

MYERS, Associate Judge:

Appellants¹ were convicted of staging obscene shows in the District of Columbia in violation of § 22-2001 D.C.Code (1961 ed.).²

Although in obscenity cases, as in all other cases relating to First Amendment guarantees of free expression, it is usually the duty of an appellate court to review the evidence from the trial court for the purpose of making "an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected," Jacobellis v. State of Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1678, 12 L.Ed.2d 793 (1964).³ in view of our disposition of the present appeal, we find it unnecessary to consider the factual issues supporting the obscenity charge.

In 1957, the United States Supreme Court in Roth v. United States, 354

U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, first announced that the constitutional test of "obscenity" is whether, to the average person applying "contemporary community standards," the dominant theme of the material as a whole appeals to a prurient interest in sex. Under this test, "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." A book named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Corn. of Massachussetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966).⁴

The only question before us is whether the trial court properly applied that part of the definition dealing with "contemporary community standards." Specifically, the issues are: (1) does the word "community" refer to a "local community" or to the nation as a whole and (2) is the Government required to offer competent evidence to prove "contemporary standards" in the community.

I

We are of the opinion that the trial court correctly instructed the jury that to determine whether a show of fends contemporary community standards of decency, reference must be made to community standards prevailing in the nation generally and not to the local standards of any specific state, county or city. To choose the mores of a locality as the standard by which permissible limits of candor and conduct are measured could effectively deny citizens of one jurisdiction access to entertainment generally available in other communities and cities in this country. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962).

As used in statutory language, the word "obscene" is intended to have a meaning that varies from time to time as general notions of decency in attire and conduct of exhibitions for public entertainment tend to change. It is not meant to "embalm the precise morals of an age or place." United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913). On the other hand, at any one time, the meaning is not intended to vary from place to place. In Jacobellis v. State of Ohio, supra, Mr. Justice Brennan, in delivering the opinion, stated:

"The Court has explicitly refused to tolerate a result whereby `the constitutional limits of free expression in the Nation would vary with state lines,' Pennekamp v. State of Florida, 328 U.S. 331 at 335, 66 S.Ct. 1029, 90 L.Ed. 1295." 378 U.S. at 194, 84 S.Ct. at 1682.

"We do not see how any `local' definition of the `community' could properly be employed in delineating the area of expression that is protected by the Federal Constitution. * * *" at 193, 84 S.Ct. at 1681.

"We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding." at 195, 84 S.Ct. at 1682.

Although it is not clear that Mr. Justice Brennan was speaking for a majority of the court in this part of the opinion⁵ and the question may not have been squarely decided, we find the reasoning in that opinion most persuasive. Accordingly, we rule that, in the District of Columbia, community standards in obscenity cases shall be determined by reference to contemporary community standards in the nation as a whole.

II

In opposing this appeal, the Government contends that whether the relevant community standards are local or national, it is not necessary for the Government to introduce any evidence to prove these standards. It is strongly urged that these standards may be determined solely in the light of the judge's or jurors' own experience and common sense. This may be true where "hardcore pornography," which is so offensive that "no conceivable community standard * * * would permit [its showing]," is involved. Womack v. United States, 111 U.S.App.D.C. 8, 10, 294 F.2d 204, 206 (1961). The case at bar, however, does not fall into that category, and knowledge of contemporary community standards, especially on a nationwide basis, is no more available to the trier of fact than the innumerable other facts which must normally be proved in an evidentiary way in many other trials.

Where the material involved is not patently obscene, neither a judge nor twelve local jurors chosen at random are capable of determining the standards of tolerance prevalent in the nation" generally without first being given some competent evidence of what those standards are. United States v. Klaw, 350 F.2d 155, 168 n. 14 (2d Cir. 1965). A guilty verdict in an obscenity trial should not be a legal expression of revulsion by the local community from which the jury is drawn. If a case is submitted to the trier of fact without first establishing the community standards by competent evidence to which the trier may refer, the verdict at best will be based on the prevailing customs in a limited geographical area and, at worst, upon the "subjective reflection of taste or moral outlook of individual jurors or individual judges. * * * [T]he determination of obscenity is for juror or judge, not on the basis of his personal upbringing or restricted reflection or the particular experience of life, but on the basis of `contemporary community standards'." Smith v. People of State of California, 361 U.S. 147, 165, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959), concurring opinion of Mr. Justice Frankfurter. These standards must be established by relevant evidence at trial.⁶

Since the prosecution in the present case had the burden of proving relevant community standards prevailing in the nation generally and elected not to do so, we hold that the Government failed to establish an essential element of the crime charged and the verdicts of guilty were therefore in error.

Reversed and remanded with directions to enter judgments of acquittal.

HOOD, Chief Judge, dissenting:

Appellants were charged with giving and participating in an obscene exhibition.¹

The exhibition or performance was described at trial by appellants' counsel as "a lusty, busty, burlesque show, in the finest traditions of our country." A reading of the record convinces me that the exhibition was neither legitimate nor traditional burlesque, but was what has been called "modern burlesque," described by one author in the following manner:

a plotless musical entertainment consisting of a series of unrelated episodes and dances, all with the purpose of depicting or suggesting sexual subjects or objects. The one outstanding characteristic of modern burlesque is the fact that it is completely sex-centered. It has some low comedy and occasionally some humor, but the principal subject of both is sex. * * * The piece de resistance is the girl who disrobes, partially or entirely, and this act varies with the political season and the locality. * * * If burlesque of today is metropolitan, so also it is vice, and needs to be thought of in that light, as an aspect of social pathology. If vice implies a sense of antagonism toward existing mores, a purveying of sex in a vicarious, professional and promiscuous fashion, then burlesque is just that. * * * Although the operator may not be willing to say so to an inquirer, usually adopting a sanctimonious air, he knows, and everything in his theatre indicates he knows, that he is giving a sex show, sans excuses, sans philosophy and above all, sans clothes. He is, in that sense a professional purveyor of sex. Dressler, Burlesque as a Cultural Phenomenon (1937).²

The jury was instructed on the elements of obscenity in language following closely the test laid down by the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and reiterated and elaborated upon in the later cases of Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); and the "Fanny Hill" case, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). With respect to community standards the jury was instructed:

Ladies and gentlemen of the jury, it is for you to be the exclusive judge of what is the common conscience of the community, as defined, and what the contemporary community standards...