People v. Hilty

• Decision Date: 09 August 1971
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Reed HILTY and Mari Saraconi, Defendants.
• Court: New York City Court

Page 164

324 N.Y.S.2d 164

67 Misc.2d 67

The PEOPLE of the State of New York, Plaintiff, v. Reed HILTY and Mari Saraconi, Defendants.

Criminal Court of the City of New York, New York County, Part AP9.

Aug. 9, 1971.

[67 Misc.2d 68] Frank S. Hogan, Dist. Atty., New York County, for the People by Donald Heller, Asst. Dist. Atty., of counsel.

Kassner & Detsky, New York City, for defendants by Herbert S. Kassner, New York City, of counsel.

OPINION

MILTON SHALLECK, Judge.

Is 'Sexual Freedom in Denmark'--a motion picture--pure ¹ pornography, as claimed by the District Attorney, or is it pornographically pure, ² as defendants claim? That is the question. And in so many cases there has been such disparity of holding in this field of law that it may in earnest be said, as Hamlet once did, ³ it is 'the undiscovered country from whose bourne no traveller returns * * *.' It is a wandering in the flat of mesalike geography that affords no single line of progress. We make our way Ad hoc with bifurcated trials at every turn.

Precedent no longer guides us along the way. For good reason, too: this term 'pornography' defies definition. ⁴ And even those judges who agree that a particular film is not legally pornographic, cannot agree among themselves why. ⁵ A case by case interpretation hardly results in consistency or stability in principle. Yet that is exactly what the court must do (Jacobellis, pp. 188--191, 84 S.Ct. 1676; see also Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 116, 119 (1960)). The result is hodge-podge. We of the lower courts are constrained to anticipate final action of the majority in a higher court--a most unsatisfactory result. Because of basic differences in approach by its several members, we flounder in wondering what the Supreme Court will do in each matter. We cross our fingers and hope that our guess is correct.

Analogous are the absolute irreconcilable opinions of the justices concerning Sabbath laws. ⁶ My words of dissent in Finkelstein (38 Misc.2d 791, 806, 239 N.Y.S.2d 835, 848--849) are apposite:

'As can be seen, courts really struggle with this problem. Their differences, like those of our highest court, are of ideology. To them the same statutes are written in conflicting language--not by actual verbiage, but by the language of early teaching, environment and religious scruples. I respect the religious beliefs cherished by any man; and I hold with our basic principles of life that each man shall have his untrammelled right to express them by words or action. But must they find their way into the law books as a means of compelling those of contrary beliefs to adhere to the rigidity of action stemming from the past ages which were left behind eons ago with our increased speed of life, with our changing ways dictated by changing means of living?' ⁷

And this means, simply, that concepts must change as do the times. The awesome scene of men perambulating about a pock-marked moon's surface is bound to bring about a reassessment of many things in life, whether they be geological or legal. The 'Rover' of Irwin and Scott can in no way be equated with the horse and buggy we so avidly read about when we were children. Nor can the law remain in the precedent of those horse and buggy days. Admitting little change, lacking movement, development or vitality which would characterize a reversion to that comparative static stage in life, should be legal anathema to those whose work it is to help living with law. The young today are bringing us to the reality of a new acceptance of experimental changes all about us. It does not exclude the law. The courts should try to pay attention to the future being made today by those who will have to live in it tomorrow, disagreement or not. Attuning the law to the times is one of the principal functions of justice and the courts. May we never forget it.

'For rigidity in the application of legal principles as an end in itself, is intolerable in a changing world. The closed eyes of the figure of justice should not be mistaken for blindness--the inability to see what is happening around her. Instead, the blindfold should symbolically evince an inner sight--to change the balance of her scales as community problems demand that different weight be given to newly arising questions. To be effective the interpretation and application of the law must be elastic and viable. New approaches to rights and duties should always govern judicial decision.' ⁸

That is not to say that historical precedent should no longer be a guide. On the contrary, the lessons learned from a long line of usage can, in most instances, lead us in the right perspective to accept the new. Laws, whether enacted by legislatures or molded by the thinking of our highest courts, reflect the desires, likes and wants of the community as a whole. It is that general bent of mind which impels the laws by which we are to be governed. if our wishes change, so will the laws, however slow. It is the little intrusions upon general acceptances which may in time cause change; not the shocking innovations. These cause revulsion rather than revolution. The few cannot overnight overturn what has grown up for a long time to be the acceptable way of community life and so indited in its laws governing the behavior of, and the relations among, people.

The difficulty to the immediate acceptance of the new is the general innocence of the public to a 'sophistication' which is ofttimes self-proclaimed. If the community considers it a misguided uprising--an activity which mocks people and their way of life--acceptance is delayed because of the unknown future it portends.

With this background we must evaluate the question herein first propounded. Since 'expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments * * *' (Joseph Burstyn, Inc. v. Wilson 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098), we are at liberty to do so. But 'the line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed, or punished is finely drawn. * * * The separation of the legitimate from illegitimate speech calls for * * * sensitive tools' (Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460). A work cannot be judged on the basis of individuals with peculiar notions or idiosyncrasies whom nothing would offend, nor by those with exceptional sensitivity who would be shocked even by the natural. Members of the judiciary are included in these categories of humans. The test is 'the judgment of the aggregate sense of the community * * *' (United States v. Harmon, D.C., 45 F. 414, 417) '* * * the use of censorship must be * * * circumscribed by the wants and needs of the people, not by the singleness of a court's mind. The Judge must project himself into the collective thinking of the community, and * * * must decide not what he thinks is good for the community, but what he believes the community wants for its own consumption * * *.' ⁹

There has been no previous definitive ruling that the motion picture 'Sexual Freedom in Denmark' is or is not obscene, although the defendants have made numerous efforts in various legal manoeuvres to have the courts rule that its public showing could not be interfered with. For example, a temporary injunction, in a declaratory judgment suit, was denied at Special Term of the Supreme Court, New York County (N.Y.L.J.; March 3, 1971, p. 2, col. 1--Carney, J., sub. nom. Art Films, International v. Hogan). Later, in that same declaratory judgment suit, the motion for summary judgment to declare the film non-pornographic was denied because of the triable issues unresolvable on that motion (N.Y.L.J. July 8, 1971--Asch, J.).

The latter court relied on the 'substantial authority to the effect that illegal obscenity raises questions of fact as well as that of law (People v. Fritch, 13 N.Y.2d 119, 124, 243 N.Y.S.2d 1, 6, 192 N.E.2d 713, 716; People v. Kirkpatrick, 64 Misc.2d 1055, 1072, 316 N.Y.S.2d 37; People v. Weingarten, 50 Misc.2d 635, 636, 271 N.Y.S.2d 158, 160; Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; Manual Enterprises v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 8 L.Ed.2d 639; Kingsley Int. Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 708, 79 S.Ct. 1362, 3 L.Ed.2d 1512; Roth v. United States, 354 U.S. 476, 497--498, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 114--116 (1960)).'

There is respectable authority also that whether a particular work is obscene, is solely a question of law (People v. Stabile, 58 Misc.2d 905, 906, 296 N.Y.S.2d 815, 818; United States v. A motion Picture Film Entitled 'I Am Curious Yellow,' 404 F.2d 196; United States v. Klaw, 2 Cir., 350 F.2d 155; Womach v. United States, 111 U.S.App.D.C. 8, 294 F.2d 204, 206, cert. den. 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822). The questions of fact which dictated the denial of summary judgment in the suit for a declaratory judgment are not here extant. For while there may have been questions of fact involved in such previous motion in that suit, on this motion before me to dismiss 'the information * * * (on the ground) that the motion picture film * * * is, as a matter of law, not obscene and is expression protected by the First Amendment * * *', both the People and the defendants have eliminated that element of possible factual involvement.

The People seek to hold the defendants criminally accountable under § 235.05 of the Penal Law for having 'exhibited to the public a movie entitled 'Sexual Freedom in Denmark' (which is) obscene in that it depicts acts of sexual intercourse and oral sodomy.' But they concede that there is no factual issue. The Assistant District Attorney in charge of this matter...