State v. Bryant

• Decision Date: 13 March 1974
• Docket Number: No. 24,24
• Citation: 203 S.E.2d 27,285 N.C. 27
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Joe BRYANT. STATE of North Carolina v. Raymond Mitchell FLOYD.

Page 27

203 S.E.2d 27

285 N.C. 27

STATE of North Carolina v. Joe BRYANT.

STATE of North Carolina v. Raymond Mitchell FLOYD.

No. 24.

Supreme Court of North Carolina.

March 13, 1974.

Atty. Gen. Robert Morgan and Associate Atty. Richard F. Kane, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by Michael K. Curtis and J. David James, Greensboro, for defendant appellants.

BOBBITT, Chief Justice.

G.S. § 14--190.1, the statute under which defendants are charged, was enacted by Chapter 405, Session Laws of 1971, to become effective 1 July 1971. Prior to consideration thereof, it seems appropriate to review briefly the content and fate of prior criminal statutes relating to the dissemination of 'obscene' material.

The 1971 Act expressly repealed former G.S. § 14--189.1, which had been enacted by Chapter 1227 of the Session Laws of 1957 and amended by Chapter 164 of the Session Laws of 1965. See State v. McCluney, 280 N.C. 404, 185 S.E.2d 870 (1972), and State v. Bryant, 280 N.C. 407, 185 S.E.2d 854 (1972).

Former G.S. § 14--189.1, a comprehensive statute, provided in part: 'It shall be unlawful for any person, firm or corporation to purposely, knowingly or recklessly disseminate obscenity. . . .' Section 14-189.1(b) defined 'obscene' as follows: 'A thing is obscene if considered as a whole its predominant appeal is to the prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or presentation of such matters.'

A warrant based on former G.S. § 14--189.1(a) was considered by this Court in State v. Barnes, 253 N.C. 711, 117 S.E.2d 849 (1961). The warrant was held fatally defective because it did not sufficiently describe and identify the alleged obscene matter to protect the accused from a second prosecution. The constitutionality of former G.S. § 14--189.1 was not discussed.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, decided 24 June 1957, the Supreme Court of the United States affirmed convictions based on violations of federal and California statutes. As summarized in the opinion of Justice Brennan: 'The federal obscenity statute makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.' The California statute makes punishable, inter alia, the keeping for sale or advertising material that is 'obscene or indecent. " Id. at 491, 77 S.Ct. at 1312, 1 L.Ed.2d at 1510. It was held 'that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.' Id. at 492, 77 S.Ct. at 1313, 1 L.Ed.2d at 1511. It was said that the test was 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Id. at 489, 77 S.Ct. at 1311, 1 L.Ed.2d at 1509. The court approved instructions of both trial judges which sufficiently followed that standard. The statute involved in Roth did not define with specificity what material would be considered obscene. In holding that 'obscenity is not within the area of constitutionally protected speech or press,' it was noted that 'obscenity' had been rejected 'as utterly without redeeming social importance.' Id. at 484, 77 S.Ct. at 1309, 1 L.Ed.2d at 1507. Justice Brennan, the author of the majority opinion, was speaking for five members of the Court.

Chief Justice Warren concurred in the result in both cases but expressed doubts as to the wisdom of the broad language used in the majority opinion. Justice Harlan concurred in the result in the case involving the California statute but dissented in the case involving the federal statute. Justice Douglas, joined by Justice Black, dissented in both cases, expressing the view that the statutes were violative of the constitutional guarantees of free speech and press.

In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, decided 22 June 1964, the Supreme Court of the United States reversed a conviction under the Ohio obscenity statute. Jacobellis was charged with the possession and exhibition of 'The Lovers,' a French film depicting an unhappy marriage and the wife's love affair with a young archaeologist. Included in the last reel was an explicit, but fragmentary and fleeting, love scene. The conviction had been affirmed by the Ohio Court of Appeals, 115 Ohio App. 226, 175 N.E.2d 123, and thereafter by the Supreme Court of Ohio, 173 Ohio St. 22, 18 Ohio Ops.2d 207, 179 N.E.2d 777 (1962). The opinion of Justice Brennan, with whom Justice Goldberg joined, expressed the views of two of the six members who voted for reversal. Justice White concurred in the reversal without opinion. Justice Stewart concurred in the reversal on the ground that under the First and Fourteenth Amendments, criminal obscenity laws are constitutionally limited to hard-core pornography, and that the film, 'The Lovers,' was not hard-core pornography. Justice Black, with whom Justice Douglas joined, concurred in the reversal on the broad ground that a conviction for exhibiting a motion picture abridges freedom of the press as safeguarded by the First Amendment, which is made obligatory on the States by the Fourteenth Amendment. Two of the three dissenting Justices expressed their views in a dissenting opinion by Chief Justice Warren, with whom Justice Clark joined, and the third, Justice Harlan, expressed his views in a separate dissenting opinion.

In Jacobellis, the opinion of Justice Brennan expressed the view that 'contemporary community standards' as used in Roth meant contemporary National community standards.

On 21 March 1966 the Supreme Court of the United States, by its decision in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, notwithstanding uncertainty engendered by the diverse views of individual justices, indicated substantial modification of the criteria stated in Roth in respect of what may be considered 'obscene'.

In Memoirs, the Supreme Judicial Court of Massachusetts, in a civil equity suit, adjudged obscene the book commonly known as 'Fanny Hill,' relating to the adventures of a young girl who became a prostitute. The Supreme Court of the United States reversed. The opinion of Justice Brennan, with whom Chief Justice Warren and Justice Fortas joined, expressed the views of three of the six members who voted for reversal. The remaining three, Justice Black, Justice Douglas and Justice Stewart, in separate opinions, expressed diverse views in support of their votes for reversal. The dissenting Justices, Justice Clark, Justice Harlan and Justice White, in separate opinions, expressed diverse views for their dissents.

In Memoirs, the trial judge received the book in evidence, heard the testimony of experts and accepted other evidence, such as book reviews, in order to assess the literary, cultural or educational character of the book. He adjudged 'Fanny Hill' obscene and 'not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States.' His judgment was affirmed by the Supreme Judicial Court of Massachusetts. Attorney General v. 'John Cleand's Memoirs of a Woman of Pleasure,' 349 Mass. 69, 206 N.E.2d 403 (1965).

The opinion of the Supreme Judicial Court of Massachusetts included the following: '(T)he fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the 'social importance' test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.' 349 Mass. at 73, 206 N.E.2d at 406.

The opinion of Justice Brennan stated that the definition of obscenity in Roth, as elaborated in subsequent cases, required that these three elements must coalesce: '(I)t 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.' Memoirs v. Massachusetts, Supra, 383 U.S. at 418, 86 S.Ct. at 977, 16 L.Ed.2d at 5--6. The opinion of Justice Brennan further stated: 'The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be Utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.' Id. at 419--420, 86 S.Ct. at 978, 16 L.Ed.2d at 6.

In Shinall v. Worrell, D.C., 319 F.Supp. 485, decided 18 December 1970, the three-judge federal court composed of Circuit Judge Craven and of District Judges Butler and Larkins, held G.S. § 14--189.1 'unconstitutional on its face and void because it abridges the Freedom of Speech Clause of the First Amendment made applicable to the states by the Fourteenth Amendment.' After comparing the elements of obscenity as defined in G.S. § 14--189.1 with the elements of obscenity as defined in Memoirs, Circuit Judge Craven, for the three-judge court, concluded: 'Only the first of the three tests of G.S. (s)...