State v. Amato

• Decision Date: 02 February 1971
• Docket Number: 103,Nos. 102,s. 102
• Parties: STATE of Wisconsin, Respondent, v. Myron M. AMATO, Appellant. STATE of Wisconsin, Respondent, v. Jack L. ROCKEY, Appellant State
• Court: Wisconsin Supreme Court

Page 29

183 N.W.2d 29

49 Wis.2d 638

STATE of Wisconsin, Respondent, v. Myron M. AMATO, Appellant.

STATE of Wisconsin, Respondent, v. Jack L. ROCKEY, Appellant

State Nos. 102, 103.

Supreme Court of Wisconsin.

Feb. 2, 1971.

The defendant Myron Amato was arrested and charged with two counts of violation of sec. 944.21(1)(a), Stats., which prohibits the sale of obscene material. The defendant Jack L. Rockey was charged with one count of violation of sec. 944.21(1)(a), Stats. After a jury trial, the defendants were found guilty. The defendant Amato was sentenced to a fine of $3,000 and in default of payment six months in the county jail under the Huber law on Count I and a fine of $2,000 and in default of payment 120 days in the county jail under the Huber law, consecutive with the penalty imposed in Count I. The defendant Rockey was sentenced to a fine of $3,000 and in default of payment six months in the county jail under the Huber law.

A motion for a new trial was denied. The defendants appeal.

On October 17, 1969, the defendants operated the J and M Bookstore in the city of Janesville, Wisconsin. The store was open to the public. It was impossible to see into the store from the street. The store displayed signs stating 'Adults Only' and 'YOU MUST BE 21 TO ENTER.'

The state introduced three exhibits which form the basis of these prosecutions. They are the magazines Heads Up, Honey Bun and Tulip Review.

Further facts will be stated in the opinion.

Garrigan, Keithley, O'Neal, Dobson, Elliott & DeLong, Beloit, for appellant.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for respondent.

HANLEY, Justice.

The following issues are presented on appeal:

(1) Are the magazines involved in this appeal constitutionally not obscene as a matter of law;

(2) Has Redrup v. New York ¹ overruled or limited preexisting holdings on the government's authority to regulate obscene material;

(3) Was it necessary for the state to prove by affirmative proof that the materials involved in this appeal were patently offensive because they affronted community standards relating to the description or representation of sexual matters; and

(4) Was it prejudicial error to permit an assistant district attorney to testify regarding pending prosecutions.

Obscenity As a Matter of Law.

The question of obscenity is not exclusively one of fact. It has been termed a mixed question of fact and constitutional law. This court has recognized that a judgment of obscenity is not an ordinary issue of fact, but rather one also involving issues of legal and constitutional interpretation. McCauley v. Tropic of Cancer (1963), 20 Wis.2d 134, 148, 121 N.W.2d 545.

In the McCauley Case there was no verdict to review; and this court based its reversal on an independent reading of the book involved. The defendants contend that the magazines they were convicted for selling are similar to those involved in other cases where lower court obscenity convictions were reversed per curiam by the United States Supreme Court, and that, as a result, they are not obscene as a matter of law. In these cases, the reversals contain no discussion whatsoever, but only a bare reference to Redrup, supra.

In support of their contention that the three magazines here involved are, as a matter of law, not obscene, defendants describe the materials involved in several per curiam 'Redrup reversals.' While a few of these cases--notably, Central Magazine Sales, Ltd. v. United States (1967), 389 U.S. 50, 80 S.Ct. 235, 19 L.Ed.2d 49,--may have involved magazines bearing similarity to one of the magazines here involved, the other cases dealt with books, films and other items bearing no resemblance to the instant materials.

Central Magazines Sales, Ltd. v. United States, supra, dealt with an appeal from United States v. 392 Copies of Magazines Entitled 'Exclusive' (D.C.Maryland, 1966), 253 F.Supp. 485, which was affirmed by the Fourth Circuit in 1967 (373 F.2d 633). In that case, the circuit court of appeals, at page 634, described the magazine as follows:

'Exclusive is a collection of photographs of young women. In most of them, long stockings and garter belts are employed to frame the public area and to focus attention upon it. A suggestion of masochism is sought by the use in many of the pictures of chains binding the model's wrists and ankles. Some of the seated models, squarely facing the camera, have their knees and legs widespread in order to reveal the genital area in its entirety. In one of the pictures, all of these things are combined: The model, clad only in a framing black garter belt and black stockings is chained to a chair upon which she is seated, facing the camera, with one knee elevated and both spread wide.

'We agree with the District Court that these apparently unretouched pictures of young women, posed as they are, are patently offensive and that the magazine Exclusive is obscene.'

We think the magazines here involved are more than a collection of photographs of nude men and women which suggest sexual activity. In the instant case much of the material concerns itself with the depiction of sexual activity.

The jury in this case, after receiving instructions based on Roth ² and succeeding cases, returned verdicts of guilty to charges of selling obscene materials. ²

An independent review of the magazines here involved reveals their similarities to, and differences from, the materials involved in the cases cited by appellants.

We conclude that the decisions cited by appellants form an insufficient basis for a ruling that these materials are not obscene as a matter of law.

Question of Modification of Obscenity Test.

The appellants contend that the decision in Redrup v. New York, supra, modified the constitutional definition of obscenity set forth in the Roth v. United States, supra, and succeeding cases.

Prior to Redrup the accepted obscenity standard was known as the Roth-Memoirs test, under which materials could not be proscribed unless there was a showing 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. Mass. (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1.

The only 'pre-Redrup' modification of this rule was made in Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 86 S.Ct. 969, 16 L.Ed.2d 31, which added a theory that 'in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.'

In 1967, the case of Redrup v. New York, supra, was decided. Redrup was actually a consolidation of three separate cases. The court had originally limited the scope of review in all three cases to the questions of scienter, vagueness of state statutes and prior restraint. Instead, the court did not reach the constitutional issues but merely recounted the differing views of the members of the court and stated, 386 U.S. at page 771, 87 S.Ct. at page 1416:

'Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand. * * *'

The court first noted that none of the cases involved violation of a statute aimed at protecting minors; none involved publication in a manner so obtrusive as to cause unwilling individuals to be exposed to the materials; and none involved any 'pandering' of the materials which the court found so significant in Ginzburg v. United States, supra.

The appellants contend that the decision in Redrup modifies the use and scope of the Roth-Memoirs test. They argue that magazines such as those involved in this case may not...