State v. Carlson
| Citation | 202 N.W.2d 640,294 Minn. 433 |
| Decision Date | 10 November 1972 |
| Docket Number | 43239 and 43241--43243,Nos. 43238,s. 43238 |
| Parties | STATE of Minnesota, Respondent, v. Robert O. CARLSON, Appellant. STATE of Minnesota, Respondent, v. Russell A. HOELSCHER, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Obscene materials are not protected by the First Amendment under the decisions of the United States Supreme Court.
2. In order for materials to be classified as obscene, three elements must coalesce: (a) the dominant theme of the material taken as a whole must appeal to a prurient interest in sex; (b) the material must be patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material must be utterly without redeeming social value.
3. Other elements to be considered by the court in determining the issue of obscenity are whether or not the statute or ordinance in question reflects a specific and limited state concern for juveniles; whether sales of the materials constituted an assault on individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it; and evidence of pandering. Lack of evidence on one or more of these items is not determinative of the issue of obscenity.
4. Photographs or movies of nude men and women are not obscene unless they graphically display explicit sexual activity and meet the test set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
5. Hard-core pornography is defined by this court to include photographs, both still and motion pictures, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. Hard-core pornography so defined is obscene and is not constitutionally protected.
6. The materials in evidence are hard-core pornography and are obscene, and convictions based on such materials are not constitutionally invalid.
Stacker, Silverstein, Burke & Radsom, St. Paul, for appellants.
Warren Spannaus, Atty. Gen., St. Paul, William B. Randall, County Atty., Daniel A. Klas, City Atty., Pierre N. Regnier, Asst. City Atty., St. Paul, for respondent.
Heard before KNUTSON, C.J., and KELLY, TODD, and MacLAUGHLIN, JJ. Reconsidered and decided on the record by the court en banc.
Defendants appeal from convictions in the Ramsey County District Court following a trial de novo on appeal from convictions in the St. Paul Municipal Court on charges of selling obscene books and displaying obscene movie films in violation of St. Paul Legislative Code, § 476.01. The fact of sale and the knowledge of defendants as to the contents of the merchandise involved are not disputed. The only issue presented to this court is whether the materials in question are obscene in a constitutional sense. We affirm those convictions which are based on evidentiary materials before this court and reverse those convictions which are based upon evidentiary materials not before us.
In Appeal No. 43238, defendant Robert Carlson was charged with selling to police officers on January 13, 1970, a booklet entitled, 'Action,' Vol. 10. In Appeal No. 43239, he was charged on two separate complaints of selling to a police officer on January 19, 1970, two booklets, one entitled 'Color Climax Pornography,' No. 6, and the other entitled 'Night Life,' No. 17. In Appeal No. 43242, defendant Russell Hoelscher was charged with exhibiting an obscene movie film on April 2, 1970, at 919 East Seventh Street in the city of St. Paul. The original arrests and convictions were based upon alleged violations of St. Paul Legislative Code, § 476.01, which provides as follows:
'Any person who shall knowingly exhibit, sell or offer to sell any obscene, lewd, lascivious or filthy book, pamphlet, picture, motion picture, film, paper, letter, writing, print or other matter of indecent character shall be guilty of a misdemeanor.'
'Action,' Vol. 10, is a paper booklet consisting of 14 pages and a photographic front and back cover. 'Color Climax Pornography,' No. 6, is a paper booklet consisting of 30 pages and a photographic front and back cover, and 'Night Life,' No. 17, is a similar paper booklet consisting of 14 pages and a photographic front and back cover. There is no written textual material in any of the booklets except the names appearing on the front covers. The front and back covers and the interior pages consist of photographs of men and women either nude, almost nude, or partially clothed, engaged in sexual activity. The activity is explicit and actual, and is not simulated. The couples or groups depicted are engaged in intercourse, oral-genital sexual acts, and anal-genital sexual acts. The movie film is untitled and simply portrays a man and a woman engaged in sexual activity which, although falling short of explicit intercourse or sodomy, constitutes graphic and explicit sexual contact.
At the time of trial, defendants admitted the sales at the time charged and the exhibition of the film at the time charged and admitted knowing the general nature of the books and movie. They based their defense on the grounds that the materials in question are not obscene and therefore they have not violated St. Paul Legislative Code, § 476.01, quoted above.
In considering the defense raised in this case, this court is obliged to follow the United States Constitution as interpreted by the United States Supreme Court. On past occasions we have had the opportunity of expressing the opinion of this court that certain materials submitted to it for consideration were obscene and in violation of particular local ordinances. State v. Hoyt, 286 Minn. 92, 174 N.W.2d 700 (1970). That case involved written materials and pictures of nudes in various positions, not explicitly depicting actual sexual relations. Our affirmance of that conviction was reversed by the United States Supreme Court in a per curiam opinion, Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970), citing Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).
Defendants in this case contend that we are compelled to reverse the convictions based on the materials in evidence before us because of the Redrup decision. We hold that the position of defendants is untenable after consideration of the evidentiary materials involved in this case.
1. The United States Supreme Court in a series of decisions has attempted to spell out certain rules applicable to the consideration of obscenity cases. One of the leading cases in this field is Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In that case, Roth, a New York businessman, was charged with using the mails to solicit sales of obscene materials in violation of the Federal obscenity statute. 18 U.S.C.A. § 1461. His conviction was affirmed. In that case the majority of the court explicitly rejected the argument that obscenity is within the area of constitutionally protected speech or press under the First and Fourteenth Amendments. Subsequent cases have not changed this express statement but have reaffirmed it. In United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410, 1412, 28 L.Ed.2d 813, 816 (1971), the court held:
1
In the Roth case the supreme court formulated a test to be applied in determining whether material is obscene (354 U.S. 489, 77 S.Ct. 1311, 1 L.Ed.2d 1509):
'* * * (W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'
Our court recognized and adopted this test of obscenity in State v. Carlson, 291 Minn. 368, 192 N.W.2d 421 (1971).
The standards enunciated by the court in the Roth case were not necessary to the decision, as the issue of obscenity was not before the court. However, in cases which followed Roth the court began the process of developing and expanding the standard expressed in Roth. In Manual Enterprises, Inc. v. Day, 370 U.S. 478, 489, 82 S.Ct. 1432, 1438, 8 L.Ed.2d 639, 647 (1962), the court said:
'* * * (Roth) being ultimately concerned only with the question whether the First and Fourteenth Amendments protect material that is admittedly obscene, the Court there had no occasion to explore the application of a particular obscenity standard.'
The court then went on to hold that in addition to appealing to prurient interest the material must also be patently offensive.
Two years later in Jacobellis v. Ohio, 378 U.S. 184, 191, 84 S.Ct. 1676, 1680, 12 L.Ed.2d 793, 800 (1964), the court further qualified the Roth test by articulating a standard recognized in Roth as the basis for excluding obscenity from constitutional protection--namely, the material must be 'utterly without redeeming social importance.' In addition, the court held that the community standards must be national rather than local, something which had been indicated in Manual Enterprises, Inc. v. Day, Supra.
2. Following the Jacobellis decision, the court sought to pull its decisions together in the case of A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General (Fanny Hill), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 5 (1966):
'* * * Under this definition (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.'
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