State v. Davis

Decision Date17 March 1983
Citation654 S.W.2d 688
PartiesSTATE of Tennessee, Appellee, v. Shearon DAVIS and Guess What, Inc., Appellants.
CourtTennessee Court of Criminal Appeals

Tommy H. Jagendorf, N. Alan Lubin, Michael F. Pleasants, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, for appellants.

William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Hugh W. Stanton, Jr., Dist. Atty. Gen., W. Fred Axley, Asst. Dist. Atty. Gen., Memphis, for appellee.


SCOTT, Judge.

The appellants and two co-defendants were charged in a twenty-four count indictment with the unlawful distribution of obscene material. Six counts related to each of the four defendants, Shearon Davis, Jerry Bergen, Gene Brewer and Guess What, Inc. The subjects of the indictments were three motion picture films and three magazines which were purchased by undercover law enforcement officers. Each count related to a separate film or magazine. At their joint trial Ms. Davis was found guilty of all counts related to her. She received a sentence of sixty days in the county jail on each count, which the trial judge ordered served concurrently. Mr. Brewer was also found guilty on each count in which he was charged and also received a sentence of sixty days on each count. The trial judge granted Mr. Brewer's motion for judgment of acquittal and, of course, his case is not before this Court. The corporate defendant was found guilty and a fine of $50,000.00 was assessed as to each count, for a total of $300,000.00. Mr. Bergen was not tried with the other defendants and the disposition of his case does not appear in the record.

The appellants have presented five issues for our consideration. In the first issue the appellants question whether the Tennessee obscenity statutes (TCA § 39-6-1101, et seq. (formerly TCA § 39-3001, et seq.)), are constitutional under Article 1, Section 19 of the Tennessee Constitution, which provides in pertinent part:

That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.

However, the appellants candidly admit that in Taylor v. State ex. rel. Kirkpatrick, 529 S.W.2d 692, 699 (Tenn.1975), our Supreme Court held these statutes to be constitutional. Our Supreme Court having addressed this issue, its determination is conclusive and is binding on this Court and all other inferior courts of this state. Barger v. Brock, 535 S.W.2d 337, 340 (Tenn.1976). This issue has no merit.

In the next issue the appellants question whether the obscenity statute is unconstitutional because it exempts certain individuals and organizations from its coverage. According to the appellants, this exemption violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

TCA § 39-6-1117 (formerly TCA § 39-3016) exempts from the provisions of the obscenity statute the following:

(1) Any public library which is entirely or partially supported by public funds;

(2) Any recognized and established educational institutions and the libraries therein;

(3) Any recognized and established museum;

(4) Any recognized and established historical society;

(5) Any licensed practitioner of the healing arts, medical clinic or hospital while engaged in a professional capacity;

(6) Any governmental agency;

(7) Any governmental sponsored organization;

(8) Any other nonprofit association or entity which is engaged in the collection and preservation of historic or religious documents; and

(9) Any person, employee or agent acting in an official capacity for such organization.

The appellants contend that this section is arbitrary and creates a constitutionally impermissible classification. In support of their position the appellants rely on Leech v. American Booksellers Association, Inc., 582 S.W.2d 738, 755 (Tenn.1979).

In Leech, our Supreme Court found that a prior obscenity act was unconstitutional because it included taxable entities and excluded nontaxable entities from its coverage. Our Supreme Court noted that:

(I)f "nontaxable entity" could be construed to exempt those religious, charitable, scientific or educational general welfare corporations that pay no taxes and include those who pay any taxes, however small, the classification would have no rational basis in the context of the criminal offense involved herein and would be void under the Equal Protection Clause of the federal and state constitutions.

As the appellants noted, in Leech our Supreme Court cited with approval, Wheeler v. Maryland, 281 Md. 593, 380 A.2d 1052 (1977), in which the Maryland Supreme Court declared that state's obscenity law unconstitutional because a bookstore employee was covered by the Act, but employees of motion picture theaters were exempted. The Maryland Court found no rational relationship to a legitimate governmental interest in subjecting the employees of sellers of obscenity to prosecution, but exempting the employees of exhibitors. 582 S.W.2d at 755.

In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), the Supreme Court reaffirmed the established view that under the Fourteenth Amendment of the United States Constitution the states are endowed with a wide scope of discretion in the enactment of laws which affect certain groups of citizens differently than others. However, such classifications must be based on grounds reasonably related to the achievement of a legitimate state objective. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See also: Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 180 (1912); State v. Nashville, Chatt. & St. L. Ry. Co., 124 Tenn. 1, 135 S.W. 773, 775 (1911).

In City of Duluth v. Sarette, 283 N.W.2d 533, 536 (Minn.1979), the Minnesota Supreme Court considered an exemption provision similar to the Tennessee provision which was part of the obscenity section of the Duluth City Code. The Court there stated:

(T)he city asserts that the exemption serves the important function of permitting the exempted organizations to disseminate or utilize obscene material for legitimate educational, scientific, or artistic purposes without fear of criminal prosecution. We believe that such an objective is justified and rationally related to a legitimate governmental purpose. It is essential that governmental units, by prohibiting the sale or dissemination of obscene materials, do not at the same time stifle scientific, medical, educational, or other bona fide uses.

The exemption in our statute also serves the important purpose of allowing materials which might be classified as obscene to be used for legitimate educational, scientific or artistic purposes without fear of prosecution. The goal of ridding society of obscene materials totally lacking any serious literary, artistic, political or scientific value is a legitimate one. The classification is not arbitrary. Therefore, the exemption is valid.

The appellants also argue that since the exemption does not place any limitations on the uses to which allegedly obscene materials may be put by the exempt organizations, the statute is overbroad and fails to relate to the exemption's ultimate purpose. In support of this proposition the appellants rely on Leech v. American Booksellers Association, Inc., supra, and City of Duluth v. Sarette, supra. In both of these cases the courts struck down exemption provisions wherein those exempt were classified on the basis of their status as taxpayers, i.e., whether they were taxable or nontaxable entities. In Leech, our Supreme Court held that such a classification is "too nebulous, too lacking in definite limits and too vague to inform men of common intelligence who is included and who is exempt from the criminal penalties of the Tennessee Obscenity Act". 582 S.W.2d at 755. In Sarette, the Court condemned the classification based on the taxable status of the entity as lacking a rational basis, since "there are undoubtedly organizations which could conceivably obtain tax-exempt status and muster support from the public, but whose objective in distributing such material would have no purpose other than to appeal to the prurient interest". 283 N.W.2d at 536.

Although the term, "any recognized and established", as applied to various institutions, is not absolutely precise, "lack of precision is not itself offensive to the requirements of due process". Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 (1957). As our Supreme Court noted in State v. Strickland, 532 S.W.2d 912, 921 (Tenn.1975):

The basic concept behind the vagueness doctrine is the idea of fairness, and that the statute should be sufficiently specific to provide notice of the type of conduct expected. The doctrine should not be used to create a constitutional dilemma out of the practical difficulties in drawing statutes.

So long as these appellants were given adequate warning as to what conduct was proscribed, they cannot complain of a due process violation. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), Roth v. United States, supra, Taylor v. State ex rel. Kirkpatrick, supra. One "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others". Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

The exemptions set forth in TCA § 39-6-1117 are constitutional, and this issue has no...

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