McNary v. Carlton

• Decision Date: 08 September 1975
• Docket Number: No. 58371,58371
• Citation: 527 S.W.2d 343
• Parties: Gene McNARY, Prosecuting Attorney of St. Louis County, Missouri, Respondent, v. Bruce CARLTON and B. Dalton Company, Appellants.
• Court: Missouri Supreme Court

Page 343

527 S.W.2d 343

Gene McNARY, Prosecuting Attorney of St. Louis County Missouri, Respondent, v. Bruce CARLTON and B. Dalton Company, Appellants.

No. 58371.

Supreme Court of Missouri, En Banc.

Sept. 8, 1975.

John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Irl B. Baris, Newmark & Baris, St. Louis, for appellants.

DONNELLY, Judge.

On February 27, 1973, the Circuit Court of St. Louis County entered its decree, under § 563.285, RSMo 1969, declaring the book 'The Happy Hooker' obscene and enjoining appellants from selling or distributing it in the State of Missouri.

Section 563.285, supra, reads in part as follows:

'The circuit courts have jurisdiction to enjoin the publication, sale or distribution of obscene prints, articles and matter, as hereinafter specified: The prosecuting or circuit attorney of any county, the chief executive officer of any city, town or village or the city attorney of any city, town, or village, in which a person, firm or corporation publishes, sells or distributes or is about to sell or distribute or has in his possession with intent to sell or distribute or is about to acquire possession with intent to sell or distribute any articles or matter named in section 563.280, or any amendment thereto, may maintain an action for an injunction against such person, firm or corporation in the circuit court of that county to prevent the sale or further sale or the distribution or further distribution or the acquisition, publication or possession within the state of such article or matter.'

Section 563.280, RSMo 1969, reads as follows:

'Every person who knowingly shall manufacture, print, publish, buy, sell, offer for sale or advertise for sale, or have in his possession, with intent to sell or circulate, or who knowingly shall give away, distribute or circulate any obscene, lewd, licentious, indecent or lascivious book, pamphlet, paper, ballad, drawing lithograph, engraving, picture, photograph, model, cast, print, article or other publication of indecent, immoral or scandalous character, or shall write, print or publish, sell or circulate, any letter, handbill, card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, when, where, how, of whom or by what means any of the things herein mentioned can be had or obtained, and whoever shall print or publish in any newspaper any vulgar, scandalous, obscene or immoral pleadings or evidence in any case or proceeding before any court or tribunal whatever, shall, on conviction thereof, be fined not more than one thousand dollars nor less than fifty dollars, or be imprisoned not more than one year in the county jail, or both; but nothing in this section shall be construed so as to affect teaching in regular medical colleges, or public standard medical books, or reports of medical societies, or the practice of regular practitioners of medicine, or druggists in their legitimate business.'

On June 21, 1973, in Miller v. California, 413 U.S. 15, 23--25, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, the United States Supreme Court reformulated the constitutional test for determining obscenity, and said:

'This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); United States v. Reidel, 402 U.S. (351), at 354, 91 S.Ct. (1410), at 1411--1412 (28 L.Ed.2d 813); Roth v. United States, supra, 354 U.S. (476), at 485, 77 S.Ct. (1304), at 1309 (1 L.Ed.2d 1498). 'The First and Fourteenth Amendments have never been treated as absolutes (footnote omitted).' Breard v. Alexandria, 341 U.S. (622), at 642, 71 S.Ct. (920), at 932 (95 L.Ed. 1233), and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47--50, 81 S.Ct. 391, 393--395, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. (495), at 502, 72 S.Ct. (777), at 780 (96 L.Ed. 1098). We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. (676), at 682--685, 88 S.Ct. (1298), at 1302--1305 (20 L.Ed.2d 225). 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. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'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, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct., at 2246, quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct., at 1311; (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. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S. (413), at 419, 86 S.Ct. (975), at 977 (16 L.Ed.2d 1); that concept has never commanded the adherence of more than three Justices at one time. See supra, (413 U.S. at 21) at 2613. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachusetts, supra, 383 U.S., at 459--460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. (184), at 204, 84 S.Ct. (1676), at 1686 (12 L.Ed.2d 793) (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284--285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497--498, 77 S.Ct., at 1315--1316 (Harlan, J., concurring and dissenting).

'We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

'(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

'(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

'Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, 408 U.S., at 230--232, 92 S.Ct., at 2246--2247; Roth v. United States, supra, 354 U.S., at 487, 77 S.Ct., at 1310; Thornhill v. Alabama, 310 U.S. 88, 101--102, 60 S.Ct. 736, 743--744, 84 L.Ed. 1093 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of the jury system, accompanied by the safeguards the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.'

On June 24, 1974, the United States Supreme Court handed down decisions in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. In Hamling and Jenkins, the Court explained and elaborated upon the Miller holding. We must, of course, recognize the impact of these decisions and, where appropriate, establish procedures in Missouri which will represent meaningful compliance with their dictates.

First, appellants in this case are entitled to any benefits afforded by the constitutional principles enunciated in Miller.

Second, we may hold that § 563.280, the primary statute proscribing the dissemination of obscene material in Missouri, is not unconstitutionally vague only if we are prepared to construe the words 'obscene,' 'lewd,' 'licentious,' 'indecent,' 'lascivious,' 'vulgar,' 'scandalous,' and 'immoral' (all of which appear in § 563.280) 'as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California, supra, 413 U.S., at 25, 93 S.Ct. (2607), at 2615 * * *.' United States v. 12 200-Foot Reels of Film, 413 U.S. 123, 130, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500. Accordingly, we now so construe § 563.280, and hold that the terms, supra, which appear therein, limit regulated material to 'representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' and 'representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' We assume our General Assembly could amend § 563.280 and define for regulation specific 'hard core' conduct other than the examples given in Miller. However, until...