State v. Chobot

Citation106 N.W.2d 286,12 Wis.2d 110
PartiesSTATE of Wisconsin, Respondent, v. Joseph CHOBOT, Appellant.
Decision Date29 November 1960
CourtUnited States State Supreme Court of Wisconsin

Raskin, Zubrensky & Padden, Milwaukee, Leonard S. Zubrensky, Milwaukee, of counsel, for appellant.

John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Dist. Atty., Richard B. Surges, Asst. Dist. Atty., Milwaukee, for respondent.

MARTIN, Chief Justice.

Sec. 944.21(1)(a), Stats. provides:

'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; * * *'

The constitutional provisions here involved are:

Wisconsin Constitution, Article I, Sec. 3:

'Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.'

Amendments to the United States Constitution:

Article I. 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

Article XIV, Sec. 1. 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

The test of obscenity which the trial court applied to the exhibits in this case is that enunciated in Roth v. United States, 1957, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (argued and decided with Alberts v. California), as follows:

'* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test [Regina v. Hicklin (1868) L.R. 3 Q.B. 360], judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.' (Emphasis supplied.)

In the Roth case the question was whether the federal obscenity statute violates the free speech amendment, and in that case conviction was by a jury. In the Alberts case the question was whether the obscenity provisions of the California Penal Code invaded the freedoms of speech and press as incorporated in the protection of the Fourteenth Amendment, and in that case conviction was by the court.

The United States supreme court held that 'obscenity is not within the area of constitutionally protected speech or press,' quoting from Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031, as follows:

"* * * There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *"

The court rejected the earlier standard of obscenity which permitted material to be judged merely by the effect of an isolated expert upon particularly susceptible persons and adopted the test referred to above, 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' It affirmed the convictions in both the Roth and Alberts cases because in both the proper definition of obscenity was used and both followed the proper standard. It is noted that in the Alberts case the trial judge indicated that as the trier of facts he was judging each item as a whole as it would affect a normal person; and the United States supreme court approved the instructions given to the jury in the Roth case, which included the following (354 U.S. 490, 77 S.Ct. 1312):

"The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards. * * *

"In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious--men, women and children."

The United States Supreme Court recognized that terms used in obscenity statutes are not precise (354 U.S. at pages 491-492, 77 S.Ct. at page 1312):

'This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * The Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.' (Citing cases)

'In summary, then, we hold 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.'

Under these authorities, the words 'lewd, obscene or indecent' used in sec. 944.21(1)(a), Stats. are not unconstitutionally indefinite. We may agree, as appellant argues, that standards by which obscenity have been judged have changed through the years and such standards may vary as between individuals. It was in recognition of that fact that it was held in the Roth case that the standard to be applied is that of the average person, applying contemporary community standards. If the dominant theme of the material taken as a whole, and considered by such standards, appeals to prurient interest, it is obscene.

In a note to the Roth case at 354 U.S. 487, 77 S.Ct. 1310, 1 L.Ed.2d 1508, the definition of the A.L.I., Model Penal Code, sec. 207.10(2) (Tent Draft No. 6, 1957) is stated as follows:

'* * * A thing is obscene if, considered as a whole, its predominant appeal is to 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 representation of such matters. * * *'

Appellant argues, citing various psychiatric texts, that there is no relationship between the reading of erotic material and dangerous social behavior. This aspect of the subject is beside the point in deciding the case. As observed by Justice Harlan in his concurring opinion in the Roth case--calling attention to the fact that the causal connection between such reading material and crime or delinquency is a matter on which there are opposing schools of scientific thought--it is not for the court to decide that question. That function is legislative, and the very fact that there is division of opinion on the subject is good reason to respect the choice made by the...

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  • State v. Andrews
    • United States
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    ...merit. Monfred v. State, 226 Md. 312, 317, 173 A.2d 173, cert. denied 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386; State v. Chobot, 12 Wis.2d 110, 116, 106 N.W.2d 286, dismissed for lack of a substantial federal question, 368 U.S. 15, 82 S.Ct. 136, 7 L.Ed.2d 85. The defendant further claims t......
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