State v. Keyhole Pub. Co.

• Decision Date: 26 August 1965
• Docket Number: No. CV,CV
• Citation: 214 A.2d 838,3 Conn.Cir.Ct. 354
• Parties: STATE of Connecticut v. The KEYHOLE PUBLISHING COMPANY et al. 9-6411-2154.
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 838

214 A.2d 838

3 Conn.Cir.Ct. 354

STATE of Connecticut v. The KEYHOLE PUBLISHING COMPANY et al.

No. CV 9-6411-2154.

Circuit Court of Connecticut, Appellate Division.

Argued July 6, 1965.

Decided Aug. 26, 1965.

Herald P. Fahringer, Jr., Buffalo, N.Y., member of the New York bar, with whom, on the brief, was Irwin D. Mittelman, Middletown, for appellants (defendants).

William P. Lage, Sp. Asst. Pros. Atty., for appellee (state).

Joseph E. Fazzano and Stanley Leven, Hartford, and Morris B. Abram and Jay Greenfield, New York City, and members of the New York bar, as amicus curiae.

JACOBS, Judge.

For nearly one hundred and fifty years, or at least as far back as 1824, Connecticut has had on its books a criminal antiobscenity statute. ¹ In 1963, the General Assembly enated legislation (General Statutes §§ 53-244a to 53-244m), supplementing existing criminal sanctions (§ 53-243) and authorizing the use of civil remedies, by way of limited injunctive relief under judicially controlled safeguards, designed and calculated to control at the source ² the sale and distribution of 'mailable matter,' ³ or printed or written matter or material, ⁴ found, after trial, to be obscene ⁵; provision is also made (§ 53-244h) for an order of seizure and destruction, in default of voluntary surrender, of the materials condemned as obscene.

Pursuant to and under the provisions of § 53-244c, the assistant prosecuting attorney for the ninth circuit filed in the Circuit Court an application for an injunction directed against certain named defendants, described as persons and entities having an interest in the matters which a final judgment may affect and whose presence is necessary for complete determination of the case, to enjoin them and others in active concert with them from distributing or selling the October, 1964, and the November, 1964, editions of a publication called 'The Keyhole,' printed and published monthly by the Keyhole Publishing Company, of the city of Hollywood, California. The prosecutor alleged in the complaint that the contents of the challenged material are 'principally made up of accounts of illicit sex, perversion, horror, physical torture, crime, brutality, physical violence, or combinations of the two or more thereof; and the pictures, photographs and drawings in said materials are principally of nude or partially denuded figures posed or presented in a manner likely to provoke or arouse lust and passion and designed to exploit sex, lust and perversion for commercial gain'; and that 'the dominant theme of the material taken as a whole appeals to prurient interest.' The state sought (1) an adjudication that the impugned materials are obscene; (2) a restraining order directed against the named defendants and others acting in concert with them, enjoining them from selling or distributing the challenged materials 'and all similar mailable matter'; and (3) the surrender, seizure and destruction of the publications found to be obscene. The court (Holden, J.), acting under § 53-244d(c), made an examination of the materials ex parte, found probable cause to believe that the two issues of 'The Keyhole' were obscene, and made an order directing the defendants to show cause why an injunction should not be issued as prayed for in the application and complaint. The defendants appeared and filed a general denial. A jury found the publications obscene. ⁶ Judgment was rendered (§§ 53-244h, 53-244i) permanently enjoining the defendants and others in active concert with them from doing or continuing the acts proscribed by the statutes 'under penalty of $1,000 fine or two years' imprisonment or both.' ⁷

Of the several assignments of error raised and pursued on appeal, we need only consider one: Whether the two issues of 'The Keyhole,' when applicable constitutional standards are applied, are obscene in the statutory sense and therefore subject to repression.

Three years ago, in State v. Andrews, 150 Conn. 92, 100, 186 A.2d 546, 551, Chief Justice Baldwin, after reviewing a number of obscenity cases handed down by the United States Supreme Court following its landmark decision in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, concluded: 'In our examination of the case law and legal literature on obscenity, we have found no more specific a definition of what can be adjudged obscene than that contained in Roth v. United States, supra, 354 U.S. 487, 77 S.Ct. 1310.' We said in State v. Cercone, 2 Conn.Cir. 144, 148, 196 A.2d 439, 441: 'Connecticut has adopted the Roth test for obscenity.' We have strictly adhered to that test. See State v. Onorato, 2 Conn.Cir. 428, 430, 199 A.2d 715; State v. Martin, 3 Conn.Cir. 309, 213 A.2d 459. ⁸ In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, the United States Supreme Court found the French film 'Les Amants' ('The Lovers') not obscene under the Roth-Alberts definition. ⁹ There, a three judge court, upon waiver of trial by jury had convicted Jacobellis of possessing and exhibiting an obscene film. His conviction was affirmed per curiam by an intermediate appellate court; State v. Jacobellis, 115 Ohio App. 226, 175 N.E.2d 123; and by the Ohio Supreme Court. State v. Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777. The Ohio Supreme Court had divided the film into eighty-seven minutes of 'vapid drivel' and 'three minutes of complete revulsion during the showing of an act of perverted obscenity.' Id., 28, 179 N.E.2d 781. In reversing the conviction of Jacobellis, the United States Supreme Court applied the Roth test to movies for the first time. Mr. Justice Brennan, announcing the judgment of the court, conceded that the Roth-Alberts test of obscenity was imperfect but chose nonetheless to retain it for want of a more workable standard. Seemingly, however, under the Jacobellis formulation, the challenged material must be without artistic value and exceed the customary limits of candor, and must have as its dominant theme an appeal to the average man's prurient interest, when viewed as a whole by the national community. ¹⁰ Moreover, it would appear that each part of the test must be satisfied in order to deny the material constitutional protection. '* * * Jacobellis leaves the relevant tests so subjective and devoid of explication as to offer little guidance for determining the obscenity of a specific work.' 'The Supreme Court, 1963 Term,' 78 Harv.L.Rev. 143, 208. 'The result is that censorship is permissible if the Court approves it and unconstitutional if the court overrules it.' Kurland, 'Foreword: 'Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government," 78 Harv.L.Rev. 143, 167.

It was suggested to the court in Jacobellis v. Ohio, supra, that the application of an obscenity law to a given work is a task with which the court need not involve itself because the determination of obscenity may be treated as a purely factual judgment on which a jury's verdict is all but conclusive. This idea the court rejected. 'The suggestion,' said Mr. Justice Brennan (378 U.S. p. 187, 84 S.Ct. 1678), 'is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. * * * [T]he question whether a particular work is obscene necessarily implicates an issue of constitutional law. See Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct., at 1315-1316 (separate opinion). Such an issue, we think, must ultimately be decided by this Court. Our duty admits of no 'substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.' Id., 354 U.S., at 498, 77 S.Ct., at 1316, see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (opinion of Harlan, J.).' We take this to mean that whether a given work is obscene and therefore beyond the scope of constitutional protection is ultimately for the court to determine as a matter of law. ¹¹ The burden on this court at this intermediate appellate stage ought to be no less.

The exhibits in the case before us are tabloids, each issue comprising twenty-four pages, published monthly, and priced at twenty-five cents a copy. They contain a deluge of sensational and scandalous material. The articles deal with the sorrier aspects of human behavior in our national life. The stories and accounts appear under bold, ribbon headlines but, upon examination, contain innocuous and misleading, if not dismal and dull, texts. The selections of immoralities are described in slick language. They maintain throughout a clever, and apparently deliverate, avoidance of socially unacceptable language. None of the contributors is distinguished by his place in the literary world nor by the quality of his style. What we have before us are publications the most important and prominent features of which are articles dealing with crime news and an accumulation of sensationalism so treated as to excite attention and thus command a circulation. The feature articles, taken at random, bear such titles as 'Teenage Sex Orgies Rock Capitol,' 'Breaks His Leg Trying to Rape Widow 99,' 'Twice-Raped Girl, 9, Bound, Thrown in River--Survives,' 'Gov't. Riddled with Homos--Sensational Facts,' etc.--these suggest the general pattern of the literature. We can see nothing of any possible value of society in these publications, yet, '[u]nder our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another. * * * What seems to one to be trash may have for others fleeting or even enduring values.' Hannegan v. Esquire, Inc., 327 U.S. 146, 157, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586.

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