People v. Neumayer

• Decision Date: 01 June 1978
• Docket Number: No. 2,Docket No. 59093,2
• Citation: 275 N.W.2d 230,405 Mich. 341
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gary John NEUMAYER, Defendant-Appellee. Calendar,
• Court: Michigan Supreme Court

Page 230

275 N.W.2d 230

405 Mich. 341

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gary John NEUMAYER, Defendant-Appellee.

Docket No. 59093.

Calendar No. 2, June Term, 1978.

Supreme Court of Michigan.

Argued June 6, 1978.

Decided Feb. 5, 1979.

L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief Appellate Counsel, Asst. Pros. Atty., by Lawrence J. Bunting, Asst. Pros. Atty., Pontiac, for plaintiff-appellant.

Taylor & Rubin, Stephen M. Taylor, Southfield, for defendant-appellant.

Edward M. Wise, Gen. Counsel, ACLU Fund of Mich., Detroit, for American Civil Liberties Union Fund of Michigan, amicus curiae.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas C. Nelson, Asst. Atty. Gen., Lansing, for amicus curiae.

MOODY, Justice.

The sole issue before this Court is whether the Michigan criminal obscenity statute, M.C.L. § 750.343a; M.S.A. § 28.575(1), which proscribes the knowing dissemination of obscene materials, is constitutionally valid and enforceable on its face as it pertains to consenting adults under the First Amendment of the U.S. Constitution ¹ and Article 1, § 5, Michigan Constitution of 1963. ² Today this Court authoritatively construes the Michigan Criminal Obscenity Statute as constitutionally proscribing the knowing dissemination of obscene materials to consenting adults. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

I Facts

On October 21, 1975, defendant Neumayer was charged in the 50th District Court with two counts of violating M.C.L. § 750.343a; M.S.A. § 28.575(1). Specifically, the charges were possession with intent to show and showing two motion pictures ("All the Way" and "Final Blow") at the Campus Theatre in Pontiac, Michigan.

On January 13, 1976, after a jury trial, the defendant was convicted on the "showing" count and he was sentenced on February 10, 1976, to two years probation. The "possession" count was dismissed by the district court judge.

Defendant appealed his conviction to the Oakland Circuit Court. The circuit court reversed the conviction, holding that the instant criminal obscenity statute applied only to the dissemination of obscene materials to juveniles and unconsenting adults but not to consenting adults.

The Michigan Court of Appeals denied leave to appeal, citing as authority People v. Bloss, 394 Mich. 79, 228 N.W.2d 384 (1975), and Kent County Prosecutor v. Robert Emmett Goodrich Corp., 53 Mich.App. 267, 275, 218 N.W.2d 771 (1974), Aff'd 396 Mich. 253, 240 N.W.2d 242 (1976).

Upon appeal to this Court, the instant case was held in abeyance pending a decision in People v. Llewellyn, 401 Mich. 314, 257 N.W.2d 902 (1977). ³ That decision was not dispositive of the issue presented herein, so we granted leave to appeal. 402 Mich. 802 (1977).

We reverse the circuit court's determination as to the criminal obscenity statute, but we affirm the reversal of the defendant's conviction because at the time he committed the conduct charged, this Court had not construed the statute to proscribe such conduct.

II The Current Status of the Federal Constitutional Law on Obscenity

In Miller v. California, ⁴ the United States Supreme Court simultaneously reaffirmed its previous position that obscenity is not constitutionally protected speech ⁵ and fashioned a new, more restrictive definition of constitutionally protected speech. ⁶ In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), released with Miller, the Court also unequivocally rejected the De facto holding of Redrup v. New York, ⁷ 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), that state police powers could not regulate obscene materials if displayed only to consenting adults. The Court announced that " * * * there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby." 413 U.S. 49, 57-58, 93 S.Ct. 2635.

After dismantling the Redrup protection accorded to materials restrictively displayed, the Court proceeded in Miller to broaden the scope of the obscenity standard previously enunciated in Memoirs v. Massachusetts, ⁸ 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

Under the new Miller formulation, the Court declined to " * * * propose regulatory schemes for the States", Miller, supra, 413 U.S. 25, 93 S.Ct. 2615, but instead revised the Memoirs test in order to provide guidelines for the trier of fact to determine what is constitutionally obscene:

"(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest;

"(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." (Citations omitted.) 413 U.S. 15, 24, 93 S.Ct. 2615.

Concomitant with its expansion of the scope of unprotected speech, the Court's majority emphasized that state statutes designed to regulate obscene materials must be "specifically defined" and "carefully limited" either as written or As authoritatively construed by the state courts. The Court offered two examples "of what a state statute could define for regulation under the second part (b) of (the Miller test)":

"(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." 413 U.S. 15, 25, 93 S.Ct. 2607, 2615.

See, also, United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123, 130, fn. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

The majority was also careful to point out that its entire consideration of the question of obscenity was limited to the minimum protections afforded by the United States Constitution. That is, the Court did not "undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene materials." 413 U.S. 49, 53-54, 93 S.Ct. 2633. Therefore, under the guarantees of the First and Fourteenth Amendments, the states may not use their police powers to regulate speech in a more restrictive fashion than allowed by Miller et al. ⁹

III The Constitutionality of the Michigan Obscenity Statute Under Current Federal and State Law

The Michigan criminal obscenity statute, 1957 P.A. 265 as amended, M.C.L. § 750.343a; M.S.A. § 28.575(1), prohibits the knowing dissemination (or possession with intent to disseminate) of obscene materials:

"Any person who knowingly either sells, lends, gives away, distributes, shows or transmutes or offers either to sell, lend, give away, distribute, show or transmute, or has in his possession with intent either to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise knowingly offers for either loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000.00, or by both such fine and imprisonment.

"For the purpose of this section, possession of 6 or more identical copies, or 6 or more articles of any obscene, lewd, lascivious, filthy or indecent book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture drawing, photograph, slide, motion picture film, figure, image, wire or tape recording, or any written, printed or recorded matter of an indecent character, shall be prima facie evidence of possession with intent to sell, lend, give away, distribute, show or transmute the thing."

The standard to be employed by the trier of fact in determining whether certain materials are "obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic" is found in M.C.L. § 750.343b; M.S.A. § 28.575(2) (1958 P.A. 127):

"The test to be applied in cases under section 343a of this act shall not be whether sexual desires or sexually improper thoughts would be aroused in those comprising a particular segment of the community, the young, the immature or the highly prudish, or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated, indifferent and unmoved. But such test shall be the effect of the book, picture or other subject to complaint considered as a whole, not upon any particular class, but upon all those whom it is likely to reach, that is, its impact upon the average person in the community. The book, picture or other subject of complaint must be judged as a whole in its entire context, not by considering detached or separate portions only, and by the standards of common conscience of the community of the contemporary period of the violation charged."

In People v. Bloss, supra, this Court was first presented with an opportunity to examine these two statutes in light of the test set forth in Miller, supra. However, the Court declined the invitation to decide whether the statutes could be validly applied to the dissemination of obscene material to consenting adults:

"We are persuaded that defendant's conviction cannot stand for the reason that at the time he did the act complained of this Court had not construed the obscenity statute ...