People v. Weingarten

• Decision Date: 13 June 1966
• Citation: 271 N.Y.S.2d 158,50 Misc.2d 635
• Parties: PEOPLE of the State of New York, Plaintiff, v. Irving WEINGARTEN, Defendant.
• Court: New York City Court

Page 158

271 N.Y.S.2d 158

50 Misc.2d 635

PEOPLE of the State of New York, Plaintiff, v. Irving WEINGARTEN, Defendant.

Criminal Court of City of New York, New York County.

June 13, 1966.

Frank S. Hogan, Dist. Atty., Louis R. Aidala, Asst. Dist. Atty., New York County, New York City, for the People.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Herald Price Fahringer, Buffalo, of counsel), for defendant.

FACTS

AMOS S. BASEL, Judge.

Defendant is charged with violation of Sec. 1141 of the Penal Law. On March 13, 1966 a police officer selected the book 'Flesh Worshipers' from a rack in a book store at 251 West 42nd Street, where defendant was employed. The officer handed the book, face up, to defendant. The book was placed in a bag, by a wrapper, and handed to the policeman, by defendant, who received a dollar for the purchase.

Defendant was seated at a raised counter about fifteen feet away from a revolving rack which contained other paperbacked books of similar type. It was from this rack the book was selected. The illustrations on the books in that rotating shelf consisted of semi-nude females in various poses. Defendant on cross-examination referred to this collection as 'the sex books'. Defendant claimed he had not read the book nor the blurbs, nor the advertising. There are 15,000 books in the store and at least 100 titles. Only 5% Of the books are of the type of 'Flesh Worshipers'. He had worked in the store for two years and five days. He was familiar with the stock.

On March 13th only he and the wrapper were in the store. Defendant's job included the taking of inventory and reporting to the owner who did the buying. He put the books on the shelves. People had bought books from the rack before.

The front cover of 'Flesh Worshipers' contains a picture of an almost nude female lashed by ropes to two poles, her wrists and ankles bound. She is facing a woman in costume, breasts, legs and part of her buttocks exposed, who is wearing high leather boots and gloves and head band to match. In the background stands a man dressed in armor with a weapon upraised facing the lashed girl.

The rear cover of the book contains a synopsis of the story.

OPINION

1. Obscenity

In 1957 in Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, the Supreme Court of the U.S. began to develop constitutional standards for dealing with obscenity. In a long series of decisions the Court made it clear that although the first amendment's constitutional guarantees of freedom of expression applies to literature, art and scientific works dealing with sex, 'obscenity is not within the area of constitutionally protected speech or press', Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Alberts v. State of California, 354 U.S. 476, 481, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187; One Inc. v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352; Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352; Tralins v. Gerstein, 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033; Grove Press v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909; Jacobellis v. State of Ohio, 378 U.S. 184, 187, 84 S.Ct. 1676, 12 L.Ed.2d 793.

In Roth v. United States, supra, the Court declared the standard to be used in determining, '(T)he present critical point in the compromise between candor and shame at which the community may have arrived', United States v. Kennerley, 209 F. 119, 121, to be (354 U.S. p. 489, 77 S.Ct. p. 1311) '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

Faced with applying that broad standard in specific instances the Court said in Jacobellis v. State of Ohio, supra, 378 U.S. p. 188, 84 S.Ct. p. 1678, 'Since it is only 'obscenity' that is excluded from the constitutional protection, the question of whether a particular work is obscene necessarily implicates an issue of constitutional law.' And at p. 190, 84 S.Ct. p. 1679: '(T)his Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.' This means in effect that judges at all levels of the judicial process are required to read the material with the need to determine whether it has outstepped its constitutional limitations. This makes us censors subject to ultimate review by the Supreme Court of the U.S. (See dissent of Mr. Justice Douglas John Cleland's Memoirs v. Atty. Gen. of Mass., 383 U.S. 413, p. 431, 86 S.Ct. 975, 16 L.Ed.2d 1.)

In the role of determining what books that 'appeal to prurient interests' have outstripped constitutional protection the Court appeared to have accepted the outer limitation that only 'hard-core pornography' would be condemned. Mr. Justice Stewart concurred in Jacobellis v. State of Ohio, supra (378 U.S. p. 197, 84 S.Ct. p. 1683): 'I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions in Roth and Alberts (supra), that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.' See also Manuel Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639. And Mr. Justice Harlan's dissents, John Clelands Memoirs v. Mass. (supra), 383 U.S. p. 455, 86 S.Ct. p. 996 and dissent in Ginzburg v. United States, 383 U.S. 463, p. 493, 86 S.Ct. 942, 969, 16 L.Ed.2d 31.

Our Court of Appeals following the Supreme Court has struggled with the problem of where to draw the line between the permissible and the obscene. In People v. Richmond County News Co., 9 N.Y.2d 578, 586, 216 N.Y.S.2d 369, 375, 175 N.E.2d 681, 685, the 'hard-core pornography test' was adopted and Judge Fuld said p. 586, 216 N.Y.S.2d at p. 375, 175 N.E.2d at p. 685. 'Mindful of the constitutional necessity to open the door barring state intrusion into this area 'only the slightest crack necessary' (Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, supra), and desirous of erecting a standard which embodies the most universal moral sensibilities and may be applied objectively, we are of the opinion that the prohibitions of section 1141 of the Penal Law should apply only to what may properly be termed 'hardcore pornography."

This 'hard-core pornography' test appeared to be the law on March 13 the charge date of the information in the instant case. Does this book meet the test? Although it contains no 'four letter' words, the book describes in detail a series of deviate sexual experiences and mass orgies. The seven characters including a missionary nurse and a minister all engage almost continuously in sexual excess. There are a number of sadistic and masochistic episodes in which the whippings are described in blunt detail. There are unusual sex scenes between men and women, there are various lesbian activities carefully described. Very few deviate exercises are omitted and there is a great emphasis on cunnilingus and flagellation. The line between what is permissible trash and 'hard core pornography' is sometimes hard to define. Quantity of Copies of Book v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, People v. Birch, 40 Misc.2d 626, 243 N.Y.S.2d 1730. Mr. Justice Stewart describing 'hard-core pornography' said he could not define it but 'know it when I see it.' Jacobellis v. State of Ohio, supra, 378 U.S. p. 197, 84 S.Ct. 1676, 1683. My opinion of this book is that it is 'sick' and the most vile revolting trash, but short of being 'hard-core' as I understand that term. (Others I am sure will differ.)

However, on March 21, 1966 the Supreme Court of the U.S. pronounced a series of decisions which apply to and are decisive of the instant case and require me to exercise my 'constitutional judgment' by finding this book obscene, even though it be not 'hard-core pornography'. John Cleland's Memorirs v. Atty. Gen. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, Mishkin v. New York, 383 U.S. 502, 503, 86 S.Ct. 958, 16 L.Ed.2d 56.

In John Cleland's Memoirs, supra, Mr. Justice Brennan, writing the majority opinion for a badly divided Court, clarified, summarized and appeared to limit the Roth doctrine. He said (383 U.S. p. 418, 86 S.Ct. p. 977) 'Under this definition (see Roth definition supra p. 161) 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.'

The book 'Flesh Worshipers' meets this definition completely. It is sexual degradation carefully prepared to appeal only to prurient interests. Nowhere in the entire book is there the least effort to discuss anything other than a prurient interest in sex.

The book without any question affronts 'contemporary community standards' relating to sex by degrading it and revelling in its degradation. It is utterly without any attempt at 'redeeming social value'. The Supreme Court majority found this value in 'Fanny Hill'--it is not possible to discover any understanding of what 'social value' means or implies in 'Flesh Worshipers'.

In Ginzburg, supra, Mr. Justice Brennan, writing for the Supreme Court included some additional factors to be weighed in determining the area between permissible publication of matters discussing sex, and obscenity. He introduced a new factor to be considered in deciding what is obscene. The Court will now...