State v. Childs

• Decision Date: 20 November 1968
• Citation: 447 P.2d 304,252 Or. 91
• Parties: STATE of Oregon, Respondent, v. Harold G. CHILDS, Appellant.
• Court: Oregon Supreme Court

Page 304

447 P.2d 304

252 Or. 91

STATE of Oregon, Respondent, v. Harold G. CHILDS, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 2, 1968.

Decided Nov. 20, 1968.

Paul R. Meyer, Portland, argued the cause for appellant. With him on the brief were Kobin & Meyer, Portland.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Barnes H. Ellis, Howard M. Feuerstein and John C. Wright, Jr., Portland, filed a brief for the American Civil Liberties Union of Oregon as amicus curiae.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Defendant, the operator of a retail tobacco and magazine business, was convicted of selling obscene written material in violation of ORS 167.151. ¹ The subject of the sale was a paper-bound book entitled 'Lesbian Roommate.' This is an appeal from that conviction.

One of defendant's principal contentions is that the material is not obscene as a matter of law and, therefore, may not be proscribed without restricting freedom in the dissemination of information in violation of the First Amendment of the United States Constitution. It is clear that obscene material does not fall within the protection of the First Amendment. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But in determining what constitutes obscenity this court may not adopt a more inclusive definition of obscenity than the one used by the United States Supreme Court, and thus prohibit a wider range of material, without violating Federal First Amendment rights.

The United States Supreme Court has held that before material may be classified as obscene it must meet each and every one of three requirements. A book named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966); State v. Watson, 243 Or. 454, 414 P.2d 337 (1966). First, the dominant theme of the material taken as a whole must appeal to a prurient interest in sex. Second, the material must be patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. Third, the material must be utterly without redeeming social value.

With respect to the first requirement, the obvious purpose behind the book under consideration is to stimulate the reader sexually. The book is presented in a manner enticing to those seeking sexual excitement. It was openly displayed on racks in defendant's place of business. On the front page, in addition to the name of the book, there are pictured two nude young women and the words: 'They salashed each other with the savagery of perverted desires. 'Beat me!' she cried.' On the back cover is a waist and head photograph of a young woman with protuberant breasts clad only in a brassiere. Under the photograph is the following:

'Betty was rich and perverted. Her need for another woman's love was so great that she was willing to descend from her upper crust life to the sordidness of a cheap rented room and third rate job * * * just so she could have a lesbian roomate. But when her darling took a liking to men, Betty turned to (sic) a savage beast.'

On the fly leaf is the following:

'Jill opened her mouth, felt the tongue dart inside, met it with her own. So strange. The hands squeezed hr breasts.

The warm thigh moved against her body, and Jill found herself wildly excited. She pushed her body against the warm thigh and returned the kiss passionately.

'The hands moved along her sides, fingers trailing lightly, and then the moist lips were on her left breast. She gasped as her erect nipple was drawn into the hot mouth, the hot tongue dancing little circles around and around. Then Betty was doing the same thing to the right breast.

"I'm on fire,' Jill whispered.

'Betty raised her head. I'll put the fire out, honey."

The above-quoted material clearly demonstrates the kind of appetite to which the book is designed to appeal. The manner in which material is marketed is relevant to the determination of obscenity. Ginzburg v. United States, 383 U.S. 463, 470, 86 S.Ct. 942, 947, 16 L.Ed.2d 31 (1966), it is said:

'This evidence (evidence of the manner of marketing), in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. * * *'

The purported story includes intimate descriptions of heterosexual or homosexual acts on the average of one every ten pages. The pages are small. The print and the margins are large. The book is a series of sexual descriptions tending to, and produced solely for, the arousal of erotic sexual fantasies; it is daydream material entirely out of touch with reality. These are characteristics commonly found in obscene material. Kronhausen, Pornography and the Law (Rev. ed. 1964) 306. It is calculated to stimulate sex feelings independent of one's chosen partner. M. Mead, Sex and Censorship in Contemporary Society, in New World Writings 7, 18 (3d Mentor Selection 1953). There is no doubt that the dominant theme of the material, taken as a whole, appeals to and is intended to appeal to an unusual and excessive preoccupation with sex. The entire book is for the purpose of inciting lascivious thoughts and arousing lustful desires. Roth, supra.

The second requirement was that the material must be patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. Illustrative of the candor used, the book in question portrays a homosexual act between two women where one is having osculatory relations with the private parts of the other and is 'greedily' making 'syrupy noises.' We believe material of this kind affronts national contemporary community standards.

Third, the material must be utterly without redeeming social value. We fail to discern any literary, moral or other value in the book. The supposed moral of the book is superficially inserted in the last few pages. It is obviously a sad excuse for justifying the portrayal of various kinds of sexual acts for the purpose of arousing in the reader erotic sexual fantasies. The following is found in Ginzburg, supra:

'* * * And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality--whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. * * *' (383 U.S. 470, 86 S.Ct. 947)

We find that the material is not constitutionally protected as a matter of law. Although defendant produced expert witnesses who testified that the book had literary value, we believe the witnesses' literary glasses were rose-colored by a belief that there is no such thing as obscenity and that there should be no restrictions on freedom of expression. In fact, one of the witnesses testified as follows:

'Q And do you put obscenity among those things that are meaningful and valuable?

'A Let me repeat the one thing that I indicated at the very beginning. In a long time, one of the things my study has tried to show is what obscenity can mean. I do not believe that the term obscenity has any substantive meaning of its own. It is, in my view, a legal fiction. It's a label you put on something if you want to censor it.'

Another expert witness testified he had never read anything which he believed to be obscene. He said that as a theoretical matter he would grant that it was possible that an obscene book could exist, but he could not conceive of such a book.

We have examined other available contemporary 'pulp' books such as 'Lust Pool' and 'Shame Agent' which were approved in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and find the book under present consideration to have been written with considerably less restraint.

We realize that we could construe the freedom of expression provision of the Oregon Constitution, Art. I, § 8, as providing greater freedom of expression than that of the First Amendment to the United States Constitution. We do not believe there is any legal basis for such a construction.

Defendant contends that the Oregon statute is unconstitutional for the same reason that its predeccessor was claimed to have been so in State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960). He contends that the statute is unconstitutional because it permits conviction without proof that the obscene material will perceptibly create a clear and present danger of antisocial conduct. A majority of the court rejected this contention in Jackson and continues to so reject it. The Supreme Court of the United States has also rejected it. See Roth, supra.

Defendant also contends that the statutory or any other definition of obscenity is so nebulous that it is impossible to determine whether any particular material is obscene and thus proscribed. Admittedly, the concept of obscenity does not lend itself to precise, mathematical definition. It is not, however, alone among imprecise terms...