Leech v. American Booksellers Ass'n, Inc.

Decision Date07 May 1979
Citation5 MediaL.Rep. 1001,582 S.W.2d 738
Parties5 Media L. Rep. 1001 William M. LEECH, Jr., Attorney General of Tennessee, et al., Appellants, v. AMERICAN BOOKSELLERS ASSOCIATION, INC., R. M. Mills Bookstore, Inc., Basin Corporation, d/b/a Middle Tennessee News Company: Association of American Publishers, Inc., National Association of College Stores, Inc., Tennessee Library Association, Appellees. William M. LEECH, Jr., Attorney General of Tennessee, et al., Appellants, v. PLAYHOUSE, INC., and Playgirl, Inc., Appellees.
CourtTennessee Supreme Court

C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, Larry E. Parrish, Sp. Asst. to Atty. Gen., Memphis, Peter H. Curry, Director of Law, Donald W. Jones, Metropolitan Atty., Dept. of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, for appellants.

William R. Willis, Jr., Willis & Knight, Alfred H. Knight, III, Willis & Knight, Nashville, Michael A. Bamberger, Finley, Kumble, Wagner, Heine & Underberg, New York City, for appellees in Davidson Chancery.

Kemper B. Durand, Rosenfield, Borod, Bogatin & Kremer, P. C., Kenneth R. Shuttleworth, Frierson M. Graves, Jr., Memphis, for appellees in Shelby Circuit.


FONES, Justice.

These cases challenged the constitutionality of the Tennessee Obscenity Act of 1978 by declaratory judgment actions instituted in the chancery court of Davidson County and the circuit court of Shelby County. The cases present two issues, the facial constitutionality of the Act and the application Vel non of the doctrine of elision.

The Shelby County trial judge held the Act unconstitutional in its entirety, and the Davidson County chancellor held substantially all of the Act unconstitutional. We declare the entire Act void.

However, this does not leave Tennessee without a criminal obscenity law. An unconstitutional act that purports to supersede or repeal an existing law is ineffective to do so, since a void law has no force and effect. State v. Dixon, 530 S.W.2d 73, 74-75 (Tenn.1975), and cases cited therein. The result is that the prior obscenity law, 1974 Tenn.Pub.Acts, ch. 510, as amended, is in full force and effect.


As a preface to our consideration of the constitutionality of the Tennessee Obscenity Act of 1978, a brief review of the tortured history of Supreme Court decisions dealing with the "intractable obscenity problem," Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (Harlan, J., concurring and dissenting), is in order.

That history begins with the landmark cases of Roth v. United States And Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Roth conducted a business in New York, the publication and sale of books, photographs and magazines. He was convicted of violating the federal obscenity statute prohibiting the mailing of obscene circulars and advertising of an obscene book.

Alberts conducted a mail order business from Los Angeles. He was convicted of violating a section of the California Penal Code prohibiting the keeping for sale of obscene and indecent books and with writing, composing and publishing an obscene advertisement of them.

The first issue the Court dealt with was whether obscenity is utterance within the area of protected speech and press, noting that this was the first time the question had been squarely presented under the first or fourteenth amendments, although the Court hastened to add that expressions could be found in numerous opinions indicating that it always had been assumed that obscenity was not protected by the first amendment.

In addressing this first issue the majority recognized that it had to deal with the fact that the first amendment is written in absolute terms:

"Congress shall make no law . . . abridging the freedom of speech, or of the press . . .."

Mr. Justice Brennan, writing for the majority, dealt with this problem by noting that in 1792, when ten of the fourteen states had ratified the Constitution, statutes in effect in those states gave no absolute protection for "every utterance":

"Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish 'any filthy, obscene, or profane song, pamphlet, libel or mock sermon' in imitation or mimicking of religious services. (Citations omitted.)" 354 U.S. at 482-483, 77 S.Ct. at 1307.

The conclusion was then reached that in the light of this history it was apparent that the unconditional phrasing of the first amendment was not intended to protect every utterance. The majority noted that the absolute phrasing of the first amendment did not prevent the Court from concluding that libelous utterances were not constitutionally protected, citing Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952).

The majority summarized the scope of the protection given speech and press in this way:

"All ideas having even the slightest redeeming social importance unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as Utterly without redeeming social importance." (Emphasis added.) 354 U.S. at 484, 77 S.Ct. at 1309.

The Court rejected the Hicklin test, which allowed material to be judged by the effect of an isolated excerpt upon particularly susceptible people and substituted in its place the following standard: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. at 489, 77 S.Ct. at 1311.

The Court approved jury instructions in the Roth case that contained the following:

" 'In other words, you determine its impact upon the average person in the community. . . . You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.'

(Y)ou alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious-men, women and children." 354 U.S. at 490, 77 S.Ct. at 1312.

Chief Justice Warren concurred in the results reached by the majority but expressed reservations because the broad language used might eventually be applied to the arts and sciences and freedom of communication generally, and he was of the opinion that the decisions in Roth and Alberts should be limited to the facts involved in those cases.

Mr. Justice Harlan concurred in Alberts but dissented in Roth. Dissenting in Roth, Mr. Justice Harlan said:

"I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is 'utterly without redeeming social importance.' Not only did this charge fail to measure up to the standards which I understand the Court to approve, but as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute. Moreover, in no event do I think that the limited federal interest in this area can extend to mere 'thoughts.' The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of 'thoughts.'

It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as 'hard-core' pornography." 354 U.S. at 507, 77 S.Ct. at 1320.

Mr. Justice Douglas wrote a dissenting opinion, in which Mr. Justice Black concurred. Mr. Justice Douglas was particularly critical of the standard of judging obscenity on the basis of whether or not it offends the common conscience of the community during the course of which he made these observations:

"If experience in this field teaches anything, it is that 'censorship of obscenity has almost always been both irrational and indiscriminate.'

The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society's values in literary freedom are sacrificed.

For the test that suppresses a cheap tract today can suppress a literary gem tomorrow." 354 U.S. at 512-14, 77 S.Ct. at 1324.

The next significant obscenity case decided by the Supreme Court was Kingsley Int'l Pictures Corp. v. Regents of N. Y. U., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). The issue in the case was whether or not a license to show the motion picture "Lady Chatterley's Lover" could be denied under a New York statute authorizing the issuance of licenses for motion pictures "unless such film or a part thereof is obscene, indecent, immoral, . . . ." The Court of Appeals of New York held that the Regents could validly deny the license to show "Lady Chatterley's Lover," finding the motion picture to be within the proscription of the statute " 'because its subject matter is adultery presented as being right and desirable for certain people under certain circumstances.' " Id. at 687, 79 S.Ct. at 1365, Quoting from 4 N.Y.2d 349, 369, 175 N.Y.S.2d 39, 55, 151 N.E.2d 197, 208 (1958) (concurring opinion). The Supreme Court held that the action denied the...

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