State v. Cox
| Decision Date | 30 November 1970 |
| Docket Number | No. 200--I,200--I |
| Citation | 477 P.2d 198,3 Wn.App. 700 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jesse Allen COX, Appellant. |
Koenigsberg, Brown & Sinsheimer, Ronald J. Meltzer, Seattle, for appellant.
Charles O. Carroll, King County Pros. Atty., James Warme, Seattle, for respondent.
Jesse Cox was a clerk in a Seattle magazine, book, and film store. He was charged with violating RCW 9.68.010, 1 a gross misdemeanor. The gravamen of the charge is that he possessed obscene materials with the intention of selling them. After a trial without jury, he was found guilty of each of 12 counts. Each count concerned a different magazine or motion picture film. He was sentenced to serve a term of 30 days on each count, with the sentences to run consecutively. The trial judge deferred execution of the sentences for a period of 1 year on the condition that Cox pay a fine of $1,000 and costs within 1 year and that he 'continue to disassociate himself with this type of activity.' The trial judge further ordered that the period of probation would run indefinitely until revoked, modified, changed, or terminated by an order of the court.
Motion pictures and 'girlie' magazines of the type involved in this case are within the ambit of the guarantees of freedom of speech and of the press afforded by the unconditional language of the first amendment to the United States Constitution. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). But, if 'obscene' they forfeit their constitutional protection. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571--572, 62 S.Ct. 766, 769, 86 L.Ed. 1031:
(Emphasis added.)
We hold that obscenity is not within the area of constitutionally protected speech or press.
(Footnotes omitted.) Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).
Because freedom of speech and of the press is indispensable to the preservation of a free society, and because the denial of constitutional protection to 'obscenity' does, even though slightly, open the door so that other eroding exceptions might eventually intrude, Roth v. United States, Supra, it has been recognized that in this esoteric field of law an appellate court cannot place its usual reliance upon the fact finding by a trial judge or jury. Jacobellis v. Ohio, Supra. 2 We must therefore independently examine Cox's magazines and films and determine whether his possession and sale was constitutionally protected.
We defined obscenity in Roth in the following terms: '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct. (1304), at 1311. Under this definition, 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.
In Memoirs, the Supreme Judicial Court of Massachusetts affirmed a trial judge's decision that Memoirs was obscene and therefore 'not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States against action by the Attorney General or other law enforcement officer' as provided by a Massachusets statute. The Supreme Court reversed, saying,
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 cancelled 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.
(Footnotes omitted.) Memoirs v. Massachusetts, Supra at 419, 86 S.Ct. 975, 978.
Justice Brennan's opinion in Memoirs referred to the Supreme Court's decision in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 969, 16 L.Ed.2d 31 (1966), decided on the same day as Memoirs, and noted that Ginzburg added a new test, that of 'pandering.' Justice Brennan said,
Evidence that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values, might justify the conclusion that the book was utterly without redeeming social importance. It is not that in such a setting the social value test is relaxed so as to dispense with the requirement that a book be Utterly devoid of social value, but rather that, as we elaborate in Ginzburg v. United States, (post), pp. 470--473, 86 S.Ct. 942, where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation at its face value.
Memoirs v. Massachusetts, Supra, 383 U.S. at 420, 86 S.Ct. at 978.
Mr. Justice Harlan, dissenting in Jacobellis, frankly acknowledges his difficulty 'in attempting to verbalize generally the respective constitutional tests, * * *.' Jacobellis v. Ohio, Supra, 378 U.S. at 204, 84 S.Ct. at 1686. For, as Justice Harlan observed, 'in truth the matter in the last analysis depends on how particular challenged material happens to strike the minds of jurors or judges and ultimately those of a majority of the members of this Court.' Jacobellis v. Ohio, Supra at 204, 84 S.Ct. at 1686. Mr. Justice Stewart's observation in his concurring opinion was even more candid.
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964).
The motion picture in Jacobellis is a French film called 'Les Amants' ('The Lovers'). Though Mr. Justice Stewart 'knows' that it is Not obscene, it Is obscene to Judge Radcliff, who wrote for the majority of the Ohio Supreme Court and described the film as
87 minutes of boredom induced by the vapid drivel appearing on the screen and three minutes of complete revulsion during the showing of an act of perverted obscenity. (It is) not hard-core pornography, I.e., filth for filth's sake. It (is) worse. It (is) filth for money's sake.
State v. Jacobellis, 173 Ohio St. 22, 28, 179 N.E.2d 777, 781 (1962), rev'd sub nom. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Jacobellis was convicted of violating an Ohio statute which prohibited the possession and exhibiting of obscene films. Three dissenting justices, Warren, Clark, and Harlan, agreed with the Ohio Supreme Court that 'Les Amants' is obscene. But a majority of the court held, for various reasons, that Jacobellis could not be convicted.
Three years after Jacobellis the Supreme Court disposed of three appeals in a remarkable per curiam opinion. One of the three, Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), 4 is strikingly similar in factual pattern to the case before us. The opinion first notes that
In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities...
To continue reading
Request your trial
- State v. Hull
- State v. Jones
-
City of Rochester v. Carlson
... ... New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). 1 There, in reversing three obscenity convictions, the court stated (386 U.S. 769, 87 S.Ct. 1415, 18 L.Ed.2d 517): ... 'In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. * * * In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. * * * And in none was there evidence of the sort of 'pandering' which the Court ... ...
-
City of Tacoma v. Mushkin
... ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value ... Miller v. California, 413 U.S. at 24, 93 S.Ct. at 2615 ... It is generally agreed that the third phase of the Miller formulation offers a less ... ...