State ex rel. Chobot v. Circuit Court for Milwaukee County

• Decision Date: 10 December 1973
• Docket Number: No. S,S
• Citation: 212 N.W.2d 690,61 Wis.2d 354
• Parties: STATE ex rel. Joseph CHOBOT, Petitioner, v. CIRCUIT COURT FOR MILWAUKEE COUNTY, Hon. Herbert J. Steffes, Circuit Judge, Presiding, Respondent. tate 179.
• Court: Wisconsin Supreme Court

Page 690

212 N.W.2d 690

61 Wis.2d 354

STATE ex rel. Joseph CHOBOT, Petitioner, v. CIRCUIT COURT FOR MILWAUKEE COUNTY, Hon. Herbert J. Steffes Circuit Judge, Presiding, Respondent.

No. State 179.

Supreme Court of Wisconsin.

Dec. 10, 1973.

Rehearing Denied Feb. 5, 1974.

Shellow & Shellow, James A. Walrath, Gilda B. Shellow, Milwaukee, for petitioner.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

Chobot contends: (1) That sec. 944.21(1)(a), Stats., is unconstitutionally vague under Miller v. California and companion cases ¹ as written and as heretofore construed by this court; (2) that to meet the standards of definiteness, this court may not reconstrue the section so that it contains the test of obscenity formulated in Miller; and (3) even if this court reconstrues the section, such construction cannot be retroactively applied to his prior acts.

There is no definition of 'obscenity' in sec. 944.21(1)(a), Stats., which provides:

'Lewd, obscene or indecent matter, pictures and performances

(1) Whoever intentionally does any of the following may be fined not more than $5,000 or imprisoned not more than 5 years or both:

(a) Imports, prints, advertises, sells, has in his possession for sale, or publishes, exhibits, or transfers commercially any lewd, obscene or indecent written matter, picture, sound recording, or film;'

As written, this section on its face is vague under the test laid down by Miller, which requires a definition of obscenity either expressly written in the statute or furnished by interpretation. In a homogenized society, it might be assumed everyone understands what obscenity means, at least for a reasonable period of time; but in our pluralistic society with varying, changing standards of conduct, the word 'obscenity' has come to mean many different things to different people. Being a criminal statute, sec. 944.21(1)(a) must give fair notice of what is prohibited and so, the latest pronouncement in the fluctuating definition of obscenity by the United States Supreme Court now requires the term 'obscenity' to be defined and limited in its terms to sexual conduct.

Textual or pictorial obscenity is related to the freedom of speech guaranteed by the First Amendment to the United States Constitution; and while it has been said that obscenity is not protected by the First Amendment to the constitution, this statement must be understood to include only obscenity defined in constitutional terms. Obscenity in a layman's sense may not be obscenity in a constitutional sense; and even what might be considered a flagrant obscenity in a layman's sense may be given constitutional protection.

Miller, in modifying previous rules to determine obscenity, recognizes the permissible extent to which a state may regulate expression of obscenity in a constitutional sense. The court states at 93 S.Ct. p. 2614:

'We acknowledge . . . the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited . . . As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.'

The guidelines to the definition of 'obscenity' are:

'(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.' Miller v. California, supra, 93 S.Ct. at 2615.

Thus the states are restricted to regulating works which depict or describe sexual conduct, which must be defined either in the statute or in its authoritative judicial construction; and the sexual conduct so defined must be portrayed in a patently offensive manner; and the work, so portraying sexual conduct, taken as a whole, must appeal to the prurient interest in sex of the average person judged by contemporary community standards and have no serious literary, artistic, political or scientific value. All other expression or portrayal of undefined sexual conduct apparently is protected by the First Amendment to the constitution.

What appeals to 'prurient interest in sex' must be judged by community standards. What amounts to 'patently offensive' in the manner of description is not expressly defined in Miller, but it is reasonable to read this term, too, as being determined by contemporary community standards (see our comment, p. 149, in McCauley v. Tropic of Cancer (1963), 20 Wis.2d 134, 121 N.W.2d 545). There is no vagueness in the commonly-accepted meaning of the terms 'literary, artistic, political or scientific value' and these are qualified by the adjective 'serious' which means important and not trifling.

Miller has not made as many modifications of the Roth-Memoirs test, at least in the Wisconsin construction of its statute, as one at first blush might think. Prior to the decision in Miller, the prevailing test of obscenity was that articulated in Memoirs v. Massachusetts (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, which itself merely refined the test of Roth v. United States (1967), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. In Memoirs, the court stated at p. 418, 86 S.Ct. at p. 977, that under the Roth test:

'. . . 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.'

Chobot argues that at least three major changes were made by Miller in the Roth-Memoirs test: (1) That the statute as written or construed must specifically define sexual conduct; (2) community standards means state as opposed to national standards; and (3) the requirement that the material be 'utterly without redeeming social value' has been replaced by the more definite concept that the material have 'serious literary, artistic, political or scientific value.'

This court in its prior construction sec. 944.21(1)(a), Stats., has adopted the Roth-Memoirs formulation of constitutional obscenity with some modifications. In State v. Chobot (1960), 12 Wis.2d 110, 106 N.W.2d 286, this court adopted the Roth test of obscenity and sustained the trial court's finding that certain magazines were, in fact, obscene. In so construing sec. 944.21(1)(a), the court held the words 'lewd, obscene or indecent' were not constitutionally vague and indefinite. In Tropic of Cancer (1963), 20 Wis.2d 134, 121 N.W.2d 545, the court again applied the Roth test of obscenity although this time in a civil action for a declaratory judgment involving sec. 269.565, Stats. The trial court had declared Tropic of Cancer to be obscene; after an independent review of the book, this court reversed but upheld sec. 269.565 against the challenge that it was unconstitutional for vagueness. In reversing, this court concluded the trial court had given insufficient consideration to the fact that the book had 'commanded serious attention as a literary work of some importance' and stated, p. 143, 121 N.W.2d, p. 550: 'Where a work of apparent serious purpose is involved, the scales will not readily be tipped toward the determination of obscenity.'

In 1966 the United States Supreme Court decided Memoirs v. Massachusetts, supra, and in a plurality opinion the Roth test was redefined and elaborated upon. This court thereafter modified its construction of sec. 944.21(1)(a), Stats., to reflect the Memoirs formulation. In State v. Voshart (1968), 39 Wis.2d 419, 159 N.W.2d 1, the question of obscenity arose in the context of a challenge to the contraband statute, sec. 963.04(5), and this court held the words 'lewd, obscene or indecent' in that section 'must be interpreted in the constitutional sense, as including only printed or filmed materials that are not protected by the First Amendment to the United States Constitution as interpreted by the United States Supreme Court.' The Roth-Memoirs test and the hard-core pornography test were both discussed and the material found obscene under both of them.

In State v. Amato (1971), 49 Wis.2d 638, 183 N.W.2d 29, the court sustained a conviction under sec. 944.21(1)(a), Stats., for the sale of obscene material, relying on an independent review of the magazines involved and upon the Roth-Memoirs test. The court also considered whether the Roth-Memoirs test had been modified by Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, or Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. We recognized that Ginzburg added a theory that evidence of pandering and the method of the description was relevant to the determination of the dominant purpose of the material and that Redrup did not foreclose a finding of obscenity even though the allegedly obscene material was not pandered or sold to minors or so obtrusively displayed as to cause unwilling viewers to see it. Miller has not affected these decisions.

In State v. Kois (1971), 51 Wis.2d 668, 188 N.W.2d 467, ¹ we stated that whether this court was required to or not it had accepted the Roth test as modified by Memoirs. In that case the...