McCauley v. Tropic of Cancer

• Decision Date: 20 May 1963
• Citation: 121 N.W.2d 545,20 Wis.2d 134
• Parties: , 5 A.L.R.3d 1140 William J. McCAULEY, in his capacity as District Attorney of Milwaukee Co., Respondent, v. TROPIC OF CANCER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 545

121 N.W.2d 545

20 Wis.2d 134, 5 A.L.R.3d 1140

William J. McCAULEY, in his capacity as District Attorney of

Milwaukee Co., Respondent, v. TROPIC OF CANCER et al., Appellants.

Supreme Court of Wisconsin.

May 20, 1963.

Bartell & Panagis, Milwaukee, for appellants.

George Thompson, Atty. Gen., Madison, William J. McCauley, Dist. Atty., and Richard B. Surges, Asst. Dist. Atty., Milwaukee, for respondent.

Walstead, Anderson, Bylsma & Eisenberg, Madison, for Wis. Chapter of the American Civil Liberties Union, amicus curiae.

FAIRCHILD, Justice.

The statute

This action was brought under sec. 269.565, Stats., entitled 'Declaratory judgments against obscene matter.' The issue is whether the matter complained of is obscene. The word 'obscene' is not defined. The statute does provide that '* * * The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.' ¹

The statute directs the court

'* * * subject to the ordinary rules of evidence in civil actions [to] * * * receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. * * *' ²

Where there is a jury trial and the jury finds the matter obscene, the court is directed to enter a judgment of obscenity unless the finding is contrary to law or to the great weight and clear preponderance of the evidence. ³

Under certain circumstances, a judgment of obscenity is made admissible in evidence in a criminal prosecution for publication or transfer of obscene matter, or possession thereof for purpose of sale, ⁴ or in a prosecution for knowing possession of obscene printed matter or other materials. ⁵

In State v. Chobot, ⁶ we reviewed a conviction of possession of obscene written matter for sale. We there treated the definition of the word 'obscene' in our statutes as the equivalent of the definition enunciated by the supreme court of the United States, and often referred to as the Roth test. ⁷ We approved the use of the Roth test by the circuit court, sustained its finding that the materials involved were obscene, and decided that as so applied our statute did not offend the state constitutional guaranty of free speech, writing and publication ⁸ nor the federal constitutional guaranty of freedom of speech or press against state action. ⁹

In the case now before us, the application of our statute dealing with obscene material, of the state constitutional guaranty of free speech, writing and publication, and of the similar federal constitutional guaranty against state action, respectively, again turns upon the question of what is obscene. We approach that question with the thought that it is desirable that the definition of obscenity be the same for all three purposes. We observe, however, that a state may permit greater freedom of speech and press than the Fourteenth amendment would require, although it may not permit less. We recognize Roth and other decisions of the supreme court of the United States as completely binding upon us in determining whether the state violates the Fourteenth amendment in proscribing or suppressing a particular piece of material as obscene. Such decisions are eminent and highly persuasive, but not controlling, authority, on the meaning of the term 'obscene' in our own statutes, ^9a and on the question of whether the proscription or suppression of a particular piece of material as obscene violates sec. 3, art. I of out state constitution. ¹⁰

We think that although the obscenity issue is critical, and appears to be identical, in all three questions, i.e., applicability of state statute, claim of state constitutional protection, and claim of federal constitutional protection, we must logically determine the state issues first. Thus in a case where all three questions are raised, we necessarily decide all three, including the federal question, in affirming a conviction or other judgment based on a finding of obscenity. This was true in Chobot. Where, however, we reverse a finding of obscenity, we, logically, have decided only state questions and not the federal, unless we were to say that under the particular circumstances the finding would stand, but for the existence of the Fourteenth amendment.

The Roth test

The capsule statement of the Roth test of obscenity is as follows: 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' ¹¹

The court equate material which deals with sex in a manner appealing to prurient interest as 'material having a tendency to excite lustful thoughts' and quotes a dictionary definition of 'prurient' as follows: '* * * Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd * * *.' ¹²

The court approved the standards applied by the trial courts in the cases under review (Roth and Alberts) ¹³ although not expressed in the same terms as the capsule statement. In Roth, the jury had been instructed: "The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts." (354 U.S. p. 486, 77 S.Ct. p. 1309) And that "The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. * * *" (p. 490, 77 S.Ct. p. 1312) In Alberts the trial judge indicated that as the trier of facts, he was judging each item as a whole as it would affect the normal person.

The court also appeared to endorse the definition of the A.L.I., Model Penal Code, sec. 207.10(2) (Tent. Draft No. 6, 1957):

'* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *'

The court also said: 'Obscene material is material which deals with sex in a manner appealing to prurient interest.' ¹⁴

There are several areas in which we, as well as others, have found the Roth test difficult to interpret. An excellent analysis of the Roth decision is contained in Censorship of Obscenity, an article by Dean Lockhart and Professor McClure of the University of Minnesota Law School. Those authors conclude that Roth

'laid down two--and only two--constitutional requirements for determining what is obscene. The two requirements are, of course, that material must be judged as a whole, not by its parts, and that it must be judged by its impact on average persons, not the weak and susceptible * * *' ¹⁵

The authors point out other concepts which they believe may be developed in future decisions. Among other questions raised is whether and to what extent the category of the obscene will include material which is not 'hard-core pornography.' ^15a It has been suggested that four per curiam decisions of the supreme court of the United States following Roth make it 'clear that the court was applying the constitutional guaranties of freedom of expression to confine obscenity censorship within very narrow limits indeed.' ^15b

One portion of the Roth decision which has been the subject of controversy, and which is of importance in dealing with the case before us, is the extent to which the seriousness of an author's purpose, the social importance of the idea expressed, or the artistic quality of expression is to be weighed in determining whether a work is obscene under the test.

The court said:

'All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial idea, 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. * * * We hold that obscenity is not within the area of constitutionally protected speech or press.' ¹⁶

Where a literary work of serious purpose which can reasonably be said to be a portrayal of truth or to express a social or philosophical idea is couched in language, or conveyed by the relation of incidents, of a type which would be obscene in another context, do the guaranties protect it, or does the nature of the language and of the incidents of the plot permit its suppression? We do not understand the quoted language as meaning that particular material can be determined to be obscene without considering the purposes, ideas or artistic quality of the work. We can only conclude that under the capsule statement of the Roth test, the question of whether the work is obscene is to be answered in the process of identifying the dominant theme and the degree of its appeal to the prurient interest. A balancing of factors is undoubtedly necessary in the application of the test, and we are of the opinion that where a work of apparent serious purpose is involved, the scales will not readily be tipped toward the determination of obscenity. Although we understand that a literary work of some quality was involved in the Roth Case we understand that its merits were not before the supreme court for procedural reasons. ¹⁷

Sec. 269.565, Stats., contemplates such balancing of factors. It directs the taking of evidence as to literary, cultural or educational character of the material under scrutiny,...