People v. Bloss, Docket Nos. 6399--6401

• Decision Date: 05 November 1970
• Docket Number: No. 3,Docket Nos. 6399--6401,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd BLOSS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd BLOSS and Clifford Hughes, Defendants-Appellants (two cases)
• Court: Court of Appeal of Michigan — District of US

Page 299

184 N.W.2d 299

27 Mich.App. 687

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd BLOSS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd BLOSS and Clifford Hughes, Defendants-Appellants (two cases).

Docket Nos. 6399--6401.

Court of Appeals of Michigan, Division No. 3.

Nov. 5, 1970.

Released for Publication Feb. 26, 1971.

John W. Piggott, Bay City, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and McGREGOR and QUINN, JJ.

J. H. GILLIS, Presiding Judge.

These 3 cases were consolidated on appeal on this Court's motion. They deal with related issues which call upon this Court to determine whether the defendants in publishing ¹ the material involved in this litigation violated Michigan's obscenity statute and to determine whether the statute as sought to be applied against the defendants conflicts with the restrictions on state action imposed by the First and Fourteenth Amendments to the Federal Constitution. In No. 6401, in addition to the Federal challenge, the defendants assert that the Michigan obscenity statute violates the Michigan Constitution of 1963, art. 1, §§ 5 and 17. ²

Our obscenity statute proscribes the publication of 'any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic' material. M.C.L.A. § 750.343a (Stat.Ann.1970 Cum.Supp. § 28.575(1)). We have no difficulty or hesitation in branding as obscene, within the meaning of this statute, the material which the defendants are charged with publishing in these 3 cases. The words and pictures of the material, taken as a whole, have a strong tendency to arouse lustful thoughts and sexual desires in the average person in the comunity and the material is offensive to the common conscience of the community. These are not borderline publications and analysis of the material here would serve no useful purpose. Were it not for the constitutional questions presented, we would affirm the convictions in all 3 cases without further discussion.

Defendants have failed to articulate an argument to support their due process claim under the Michigan Constitution. Nor do we see any merit to their position. For example, defendants assert in support of their due process claim that M.C.L.A. § 750.343b (Stat.Ann.1970 Cum.Supp. § 28.575(2)) ³ 'is not couched in terms laid dowm by Roth.' Yet the statute is, almost Verbatim, the jury instruction approved in Roth v. United States ⁴ (and Alberts v California) (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

Just as language contained in a statute or court opinion is not necessarily appropriate for use in a jury instruction, Cf. In re Wood Estate (1965), 374 Mich. 278, 132 N.W.2d 35, the language of a jury instruction proper under the specific facts of one case does not necessarily become appropriate for use in a statute. Section 343b does not qualify as a model of legislative draftsmanship, but it certainly is not void for any reasons stated in Roth or advanced by defendants.

In No. 6401, defendants argue that the obscenity statute is void for vagueness. This legislation was adopted in reaction to Butler v. Michigan (1957), 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, which declared Michigan's former obscenity statute unconstitutional, and, as we have noted, Roth-Alberts, supra. The legislature did not attempt to define obscenity in either the former or the present statute. This is in the tradition of the common law which leaves obscenity, like fraud, due care, and other concepts difficult to define, to be delineated by the courts on a case by case basis. Roth fully supports this practice.

'Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. The Constitution does not require impossible standards; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.' Roth v. United States, Supra, 354 U.S. at 491, 492, 77 S.Ct. at 1312, 1313, 1 L.Ed.2d at 1510, 1511. (Citations and interior quotation marks omitted.)

Finally, defendants contend--and this is the only point that requires extended treatment--that Michigan's obscenity statute offends their right of free speech as guaranteed to them by the First and Fourteenth Amendments of the United States Constitution. Any discussion of this subject must start with Roth-Alberts. The dispositive question there was 'whether obscenity is utterance within the area of protected speech and press.' Roth v. United States, Supra, at 481, 77 S.Ct. at 1307, 1 L.Ed.2d at 1505. In holding that obscenity was not so protected, the Court said:

'Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all the 48 states, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.' Roth v. United States, Supra, at 484, 485, 77 S.Ct. at 1309, 1 L.ed.2d at 1507.

Roth-Alberts dealt with two cases, one an appeal from a conviction for violating a Federal obscenity statute, and the other an appeal from a conviction under a state obscenity statute. No issue was presented in either case concerning the obscenity of the material before the Court. Nonetheless, the Court undertook to define obscenity.

'Obscene material is material which deals with sex in a manner appealing to prurient interest.' Roth v. United States, Supra, at 487, 77 S.Ct. at 1310, 1 L.Ed.2d at 1508.

With hindsight sharpened by the experience that state and federal courts have had with this problem in the 13 years since Roth-Alberts, we believe that in defining obscenity there, the Supreme Court made two fundamental errors--errors which have contributed to, if not caused, the disharmony among the Justices of the Supreme Court ever since.

The first error was the attempt to define obscenity at all. Resolution of the two cases before it did not require the Court to offer a definition and, in giving the definition that it did, the Court failed to distinguish between Roth, a federal prosecution, and Alberts, a state prosecution.

The Court failed to pay attention to the provisions of the two obscenity statutes involved. Despite the differences in language, the Court seemed to think that its definition of obscenity applied in both cases. In the federal prosecution, the Court could interpret the statute any way it wanted to, whatever the wisdom of the situation required, but it had no right to so distort the meaning of the state statute before it. See the separate opinion of Justice Hurlan in Roth-Alberts, supra, at 496--508, 77 S.Ct. at 1315--1321, 1 L.Ed.2d at 1513--1520, concurring in part and dissenting in part.

The primary obligation to define obscenity in a state prosecution rests with the state, either through its legislature or its courts. The only function of the Supreme Court in this area is to determine whether that definition is, in the circumstances of the case before it, consistent with the defendant's rights to due process and free speech. Justice Harlan stated it well in his dissenting opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts (1966), 383 U.S. 413, 458, 86 S.Ct. 975, 997, 16 L.Ed.2d 1, 28:

'State obscenity laws present problems of quite a different order. The varying conditions across the country, the range of views on the need and reasons for curbing obscenity, and traditions of local self-government in matters of public welfare all favor a far more flexible attitude in defining the bounds for the States. From my standpoint, the Fourteenth Amendment requires of a State only that it apply criteria rationally related to the accepted notion of obscenity and that it reach results not wholly out of step with current American standards. As to criteria, it should be adequate if the court or jury considers such elements as offensiveness, pruriency, social value, and the like. The latitude which I believe the States deserve cautions against any federally imposed formula listing the exclusive ingredients of obscenity and fixing their proportions.' (Emphasis supplied.)

In Roth-Alberts and the ensuing obscenity decisions of the Supreme Court, a majority of the Justices recognize the right of the states to regulate and prohibit the publication of obscene materials, but, at the same time, most of them would require that the right to regulate obscenity be exercised within the framework of a federal definition of obscenity. In our view the two principles are mutually exclusive. In attempting to reconcile them the Court set itself an impossible task which has resulted in the babble of opinions emanating from that Court over the past dozen years.

We do not mean to say that the state obscenity regulations are or should be free of any federal control, but we do believe that the state's definition of obscenity must be accepted by the Federal courts and a Federal Court's sole function is to determine whether, in its application, the obscenity statute treads upon any...