Seven Magazines, In re

• Decision Date: 17 August 1970
• Docket Number: No. 886-A,886-A
• Citation: 107 R.I. 540,268 A.2d 707
• Parties: In re SEVEN MAGAZINES. ppeal.
• Court: Rhode Island Supreme Court

Page 707

268 A.2d 707

107 R.I. 540

In re SEVEN MAGAZINES.

No. 886-Appeal.

Supreme Court of Rhode Island.

Aug. 17, 1970.

[107 R.I. 553] Herbert F. DeSimone, Atty. Gen., W. Slater Allen, Asst. Atty. Gen., for petitioner.

Leonard A. Kamaras, Providence, Robert Eugene Smith, Towson, Md., for respondent.

OPINION

JOSLIN, Justice.

The Attorney General acting pursuant to G.L.1956, chap. 31.1 of title 11, as amended by P.L.1966, chap. 257, sec. 1, brought this in rem proceeding in the Superior Court against seven magazines. ¹ He alleged reasonable cause to believe the publications were obscene, and, based upon his petition, an ex parte order was entered restraining the sale and commercial distribution of the magazines.

In due course the case was heard on its merits before a trial justice sitting without a jury. At that hearing the seven magazines were introduced as exhibits. In addition there was oral testimony from the Providence police officer who had purchased the magazines. He described the premises where the publications were offered for sale, the manner in which they were displayed, and the amount paid for them. No evidence was proffered either by the state or by respondents on whether the publications were obscene vel non in the constitutional sense.

At the conclusion of this limited hearing the trial justice quashed the ex parte restraining order as having been improvidently issued. He then found that chap. 31.1 of title 11, except for § 11-31.1-4, ² was constitutionally valid and that the publications were obscene 'as a fact.' The respondent publishers appealed.

A generalized description of the magazines will create an adequate factual frame of reference. They are of three separate types. 'Candy,' commonly known as a 'girlie magazine,' contains pictures of nude or scantily clad women so posed as to focus on the public area or the breasts; 'Big Boys' displays frontal views of nude or semi-nude males with emphasis on the penis; and 'Jaybird Happenings' and 'Naked Nuts' contain photographs of mixed groups of either nude or partially clad males and females posed so as to draw attention to their genitalia. In some instances the sexual organs of the male and female are in close proximity to each other, and at other times the penis is in close juxtaposition to the breasts of the female. Other than for the captions accompanying the photographs, there is little textual material. 'Jaybird Happenings,' for example, contains an article purporting to describe some of the problems associated with the photographing of nudes, and 'Big Boys' has one advocating nudism as a 'BODYBUILDER.'

The state does not assert, nor have we found, any depiction of an act of sexual intercourse, sodomy or sadism, nor are there any photographs of an orgy-like character.

The question for us is not whether the magazines and the photographs are inexcusably vulgar, filthy, revolting and disgusting-and that they are in our judgment ³-but whether they are obscene in the constitutional sense as defined by the United States Supreme Court.

The originating modern-day definition of obscenity in the constitutional sense is found in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). There a majority of the Court, while saying that 'obscenity is not within the area of constitutionally protected speech or press,' id., at 485, 77 S.Ct. at 1309, 1 L.Ed.2d at 1507, also said that '* * * sex and obscenity are not synonymous.' Id., at 487, 77 S.Ct. at 1310, 1 L.Ed.2d at 1508. The majority then defined as obscene that kind of material the dominant theme of which, taken as a whole and applying contemporary community standards, appeals to the prurient interests of the average person. Id., at 489, 77 S.Ct. at 1311, 1 L.Ed.2d at 1509. Under that 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.' A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 5-6 (1966).

These were the tests, somewhat amplified, which the legislature delineated in § 11-31.1-7 as preconditions to an adjudication of obscenity, and which the trial justice referred to in these cases, except that the contemporary community standard he relied upon was local ⁴ rather than national in scope. Local guidelines are not appropriate, however, for if each of the 50 states were free to apply its own contemporary community standard for what it might proscribe as obscene '* * * the constitutional limits of free expression in the Nation would vary with state lines.' Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295, 1298 (1946). It was to avoid that kind of unthinkable result that Justice Brennan, announcing the judgment of the Court in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), in an opinion in which Justice Goldberg joined, said: '* * * the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.' Id. at 195, 84 S.Ct. at 1682, 12 L.Ed.2d at 802. (Emphasis supplied.) Accord, Judgment of the Court as announced by Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639, 647 (1962).

The Roth-Memoirs ground rules have by no means solved the problems which have come before the courts, and a reading of the cases makes it obvious that judges have been troubled in applying those guidelines to the materials which have been before them for adjudication. Apparently not even the Supreme Court was satisfied that its prior pronouncements were adequate to solve the recurring conflict between the First Amendment guarantees on the one hand and the power of the states to suppress the sale and distribution of books and magazines on the other. What other explanation can there be for Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967)? There, in a per curiam opinion subscribed to by seven of the Justices, the Court reversed three lower court determinations of obscenity. Instead of relying solely on the Roth-Memoirs standard as the yardstick by which to gauge what was obscene, the Justices summarized their diverse views about what publications are protected from governmental suppression, whether criminal or civil, in personam or in rem. Then, in resolving the litigation before it, the Court held that 'Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.' ⁵ Id. at 771, 87 S.Ct. at 1416, 18 L.Ed.2d at 518. The announced views of the Justices follow:

'Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control, or punish the distribution of any writings or pictures upon the ground of their 'obscenity.' A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly identifiable class of material. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless '(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,' emphasizing that the 'three elements must coalesce,' and that no such material can 'be proscribed unless it is found to be utterly without redeeming social value.' * * * Another Justice has not viewed the 'social value' element as an independent factor in the judgment of obscenity.' Id. at 770-771, 87 S.Ct. at 1416, 18 L.Ed.2d at 518. (citations and footnotes omitted.)

When the Court in Redrup said that a third Justice limited obscenity 'to a distinct and clearly identifiable class of material,' it refers to the views of Justice Stewart who, in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), wrote:

'I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.' Id. at 197, 84 S.Ct. at 1683, 12 L.Ed.2d at 803-804. (Emphasis supplied.)

To ascertain what is and what is not 'hardcore pronography' in Justice Stewart's lexicon, we look to his dissenting opinion in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). There, making the attempt which in Jacobellis he had avoided, he said:

'There does exist a distinct and easily identifiable class of material in which all of these elements coalesce. It is that, and that alone, which I think government may constitutionally suppress, whether by criminal or civil sanctions. I have referred to such material before as hardcore pornography, without trying further to define it. Jacobellis v. Ohio, 378 U.S. 184, at 197, (84 S.Ct. 1676 at 1683, 12 L.Ed.2d 793 at 803-804) (concurring opinion). In order to prevent any possible...