People v. Billingsley

• Decision Date: 30 October 1969
• Docket Number: Docket Nos. 5544--5546,No. 2,2
• Citation: 20 Mich.App. 10,173 N.W.2d 785
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil BILLINGSLEY, Lindo Schort and Floyd Bloss, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 785

173 N.W.2d 785

20 Mich.App. 10

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Virgil BILLINGSLEY, Lindo Schort and Floyd Bloss Defendants-Appellants.

Docket Nos. 5544--5546.

Court of Appeals of Michigan, Division No. 2.

Oct. 30, 1969.

Released for Publication Feb. 4, 1970.

Ernest Goodman, Detroit, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Bruce A. Barton, Pros. Atty., Jackson County, Jackson, for appellee.

Before J. H. GILLIS, P.J., and LEVIN and BRONSON, JJ.

LEVIN, Judge.

The defendants Billingsley, Schort and Bloss appeal their convictions of sale and possession for sale of obscene literature. ¹ The charged offense concerned 3 books, Pleasures and Follies, Les Enfants Terribles, and My Secret Life. The trial judge found that My Secret Life was not obscene and limited the jury's consideration to the other 2 books.

The defendants' main contention on appeal is that the 2 books are not obscene in the constitutional sense. The phrase 'obscene in the constitutional sense' was coined by the United States Supreme Court. ² It serves both to focus attention on the constitutional issue involved when the State seeks to suppress speech and to remind us of the paramount role of the United States Supreme Court in expounding the law of obscenity. The parties are in agreement that, in deciding whether these books, clearly obscene in the ordinary sense in which the word is used, are obscene in the constitutional sense, we are obliged to make a judgment independent of the jury's verdict. ³

The 2 books are sexual diaries, I.e., autobiographical accounts almost exclusively of sexual incidents in the life of the protagonist. The descriptions primarily concern normal heterosexual activity. There are, however, many descriptions of more exotic heterosexual and, in 1 of the 2 books, of homosexual activity. ⁴ The descriptions of particular sexual encounters are often protracted, repetitious and fanciful.

In A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, the United States Supreme Court held that Massachusetts could not ban the sale of the sexual diary, Fanny Hill. Three justices joined in the following statement:

'We defined obscenity in Roth ⁵ in the following terms: '(W)hether 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, (1 L.Ed.2d at 1509). Under this definition, as elaborated in subsequent cases, 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.'

Three justices concurred in the result, Justices Black and Douglas because in their view the State may not control the expression of ideas and Justice Stewart because in his opinion Fanny Hill is not 'hard-core pornography.'

On the same day that Memoirs was decided, the Court held that Ralph Ginzburg had been properly convicted of distributing obscene literature even if the material involved was not obscene ⁶ because the evidence showed that he had engaged in the 'sordid business of pandering.' ⁷ Ginzburg v. United States (1966), 383 U.S. 463, 467, 86 S.Ct. 942, 16 L.Ed.2d 31, Rehearing denied 384 U.S. 934, 86 S.Ct. 1440, 16 L.Ed.2d 536.

The Court's most recent statement is in its much discussed Redrup opinion which held that various magazines and the books Lust Pool and Shame Agent were protected by the First and Fourteenth Amendments from State suppression. Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. The opinion of the Court (signed by 7 justices) repeated, but declined to rest decision solely on, the Roth-Memoirs test; it adverted to the opinions of the justices who regard that test as too narrow a view of the First Amendment and concluded with the statement: 'Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.' The Redrup opinion emphasized that no claim had been made that 'the statute in question reflected a specific and limited state concern for juveniles,' that there had not been 'any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it,' and that there was no 'evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States.'

The United States Court of Appeals for the Eighth Circuit has observed that in Redrup 'there is specific indication that a majority of the Supreme Court adopts standards 'not dissimilar' to banning only 'hard-core' pornography. Subsequently application of Redrup gives no contraindication.' ⁸

On the authority of Redrup the United States Supreme Court has reversed 19 decisions of lower Federal and State courts. ⁹ Some of these concerned motion pictures, others magazines and still others books. The following books have been held not obscene:

Sex Life of a Cop. ¹⁰ Aday v. United States (1967), 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309.

Orgy Club. ¹¹ Mazes v. Ohio (1967), 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315.

Lust Job. ¹² Books, Inc. v. United States (1967), 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311.

Sin Hooked, Bayou Sinners, Lust Hungry, Shame Shop, Fleshpot, Sinners Seance, Passion Priestess, Penthouse Pagans, Shame Market, Sin Warden, Flesh Avenger. A Quantity of Copies of Books v. Kansas (1967), 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314.

Sin Whisper. Corinth Publications, Inc. v. Wesberry (1967), 388 U.S. 448, 87 S.Ct. 2096, 18 L.Ed.2d 1310, Post-Redrup but Redrup was not relied on in the Supreme Court opinion. ¹³

Pleasure was my Business. Tralins v. Gerstein (1964), 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033, Pre-Redrup.

Other courts have held that similar publications are entitled to constitutional protection. ¹⁴

We have read the 2 books involved in this case and compared them with some of the books held to be not obscene. ¹⁵ Where we have not been able to obtain a book, we have relied on the description of its contents in the opinion of the court which was reversed by the United States Supreme Court.

All these sexual diaries, those before us and those that other courts, including the United States Supreme Court, have held to be not obscene, are fundamentally the same. They are all designed to appeal to the sexual appetite of the reader. Their overall format is identical. The protagonist proceeds insatiably from one sexual incident to another to the exclusion of any other interest. The intimate descriptions of herculean performances portrayed in the diaries before us are similar in concept to descriptions of sexual incidents in several of the books which we examined that were held by the United States Supreme Court to be protected by the First and Fourteenth Amendments.

We have considered the fact that the 2 books before us liberally use vulgar words and are written in an unskilled and coarse style. The images produced in the theatre of the mind by the sexual diaries before us are, however, precisely the same as the mental images portrayed in the books found to be entitled to constitutional protection. The fact that considerably more profanity is used in the diaries before us to convey the same fundamental ideas, thoughts and images cannot be the basis of a meaningful, workable, constitutional distinction. The constitutional right to communicate ideas would be unduly limited if the State could take upon itself the right to prohibit the use of certain words, however offensive and odious they may be, to communicate those ideas. ¹⁶ The State cannot constitutionally differentiate between one sexual diary and another, both communicating the same thoughts and images, according to the delicacy of the words chosen to convey those thoughts and images. The exercise of the constitutional right does not depend on the author's euphemistic skill.

Reversed.

J. H. GILLIS, Presiding Judge (concurring).

In my view these books are obscene. They are, however, in the same class as many others found not to be 'obscene in the constitutional sense' by the United States Supreme Court.

I, therefore, concur in the results.

1 M.C.L.A. § 750.343a (Stat.Ann.1954 Rev. § 28.575(1)).

2 See Redrup v. New York (1967), 386 U.S. 767, 769, 87 S.Ct. 1414, 18 L.Ed.2d 515; A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1; People v. Zerilli (1968), 14 Mich.App. 513, 165 N.W.2d 619.

3 In Jacobellis v. Ohio (1964), 378 U.S. 184, 188, 189, 84 S.Ct. 1676, 1678, 12 L.Ed.2d 793, the United States Supreme Court observed that in areas involving constitutional rights under the due process clause, the Court had 'consistently recognized its duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case. (citations omitted) And this has been particularly true where rights have been asserted under the First Amendment guarantees of free expression.'

4 There are, however, no masochistic or scatological episodes. Nor, with one exception, are there any sadistic episodes. The one sadistic episode appears in Pleasures and Follies. It is brief and appears to have been added for purposes of contrast and as part of the author's asserted theme that the sexual activity described in his book is preferable to that represented in the works of the Marquis deSade.

5 Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1...