People v. Bloss

• Decision Date: 31 October 1972
• Docket Number: No. 22,22
• Citation: 201 N.W.2d 806,388 Mich. 409
• 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: Michigan Supreme Court

Page 806

201 N.W.2d 806

388 Mich. 409

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).

No. 22.

Supreme Court of Michigan.

Oct. 31, 1972.

Frank J. Kelley, Atty. Gen., State of Michigan, James K. Miller, Pros. Atty., Kent County, S. J. Venema, Sp. Atty., Grandville, for plaintiff-appellee.

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

Before the Entire Bench.

ADAMS, Justice.

The United States Supreme Court has declared obscenity to be outside the First Amendment guarantee of free speech (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). It has attempted to define what constitutes obscenity. In A Book Named 'John Clelands Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), Justice Brennan wrote:

'We defined obscenity in Roth 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., (1304) at 1311. 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.'

In Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964), Justice Brennan asserted that the 'community standards' test 'must be determined on the basis of a national standard.' ¹ In Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), it was determined that if one 'pandered' the material to exploit its sexual content, the material could be deemed obscene regardless of whether it had failed the 'utterly without redeeming social value' test mentioned in Memoris, supra. Justice Brennan described 'pandering' as follows (pp. 465--466, 467--471, 86 S.Ct. pp. 944--947):

'In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, (16 L.Ed.2d 56) and as did the courts below, 224 F.Supp. (129), at 134, 338 F.2d (12), at 14--15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. The record in that regard amply supports the decision of the trial judge that the mailing of all three publications of offended the statute.

'* * * there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering--'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.' Eros early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal; the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. Eros and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed.

'The 'leer of the sensualist' also permeates the advertising for the three publications. The circulars sent for Eros and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded an unrestricted license allowed by law in the expression of sex and sexual matters. The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book's informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book's sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book's therapeutic worth. Inserted in each advertisement was a slip labeled 'Guarantee' and reading, 'Documentary Books, Inc. unconditionally guarantees full refund on the price of The Housewife's Handbook on Selective Promiscuity if the book fails to reach you because of U.S. Post Office censorship interference.' Similar slips appeared in the advertising for Eros and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was being asked to buy.

'This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality--whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.'

None of the Supreme Court decisions were signed by a majority of the Justices until Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). As noted by Justice Harlan in his concurring and dissenting opinion in Ginsberg v. New York, 390 U.S. 629, 676, 704--705, 707, 88 S.Ct. 1274, 1314, 1315, 20 L.Ed.2d 195 (1968):

'The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. * * *.

'The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.' ²

In Redrup, supra, obscenity statutes of three different States were involved. In each case the Supreme Court, in a per curiam decision signed by seven of the nine Justices, concluded that the distribution of the material therein involved was 'protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, In personam or In rem.' The following statement appears in the per curiam opinion (386 U.S. p. 769, 87 S.Ct. p. 1415):

'In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there 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. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.'

Although recognizing that the Court had differing views on the tests to determine obscenity, the Court concluded that whatever view was used, the judgments holding the materials to be obscene could not stand. This opinion was signed by Justices Douglas and Black who believed that obscenity was protected by the Constitution (see Roth, supra), Justice Warren who believed 'community standards' meant local standards (see Jacobellis, supra), Justice Stewart who believed only 'hard-core' pornography was proscribed (see Jacobellis, supra), and Justice White who believed that the 'social importance test' was not an independent criteria to determine obscenity (see Memoirs, supra). ³

Therefore, according to Redrup, before one decides whether material is or is not obscene under the Roth test, one must look to the three tests in Redrup. Unless one of those tests is met, the material, however coarse or vulgar it may be, is 'protected by...