State v. Lesieure, 78-334-C

• Citation: 121 R.I. 859,404 A.2d 457
• Decision Date: 17 July 1979
• Docket Number: No. 78-334-C,78-334-C
• Parties: STATE v. Ronald LESIEURE et al. A.
• Court: United States State Supreme Court of Rhode Island

Page 457

404 A.2d 457

121 R.I. 859

STATE v. Ronald LESIEURE et al.

No. 78-334-C.A.

Supreme Court of Rhode Island.

July 17, 1979.

[121 R.I. 875] John Murphy, Asst. Atty. Gen., for plaintiff.

Leonard A. Kamaras, Providence, William E. Seekford, Towson, Md., for defendants.

OPINION

WEISBERGER, Justice.

This case comes before us on two questions certified by the Superior Court for Kent County regarding the constitutionality of portions of G.L. 1956 (1969 Reenactment), chapter 31 of title 11. The defendants were charged with violating provisions of this chapter in an indictment returned by the Kent County Grand Jury charging that the defendants

"knowingly have in their possession, books, magazines, pictures and other material which are obscene, for the purpose of sale and exhibition in violation of § 11-31-1, G.L.R.I., 1956, as amended, (Reenactment of 1969)."

The defendants moved to dismiss the indictment on the grounds embodied in the following certified questions:

"1. Is Section 11-31-1, of the General Laws of Rhode Island, as amended, invalid and void for impermissible vagueness and overbreadth in regulating First Amendment materials contrary to the specificity and particularity requirements of the First and Fourteenth Amendments and the fair notice requirements for Due Process under the Fourteenth Amendment and the provisions of Article 1, Section 10, Declaration of Rights in the Constitution of Rhode Island ?

"2. Do the exemptions, independently, as set forth in Section 11-31-15 of the General Laws of Rhode Island, as amended immunizing the exempted class from the criminal penalties of Section 11-31-1, or in conjunction with the exempted classes as provided in Section 11-31.1-6 and 11-31.1-7(e), in the event Section 11-31.1 et seq. is to be read in Para materia (sic) with Section 11-31-1 et seq. deny to a person the equal protection of the law contrary to the equal protection clause of the Fourteenth Amendment and Article 1, Section 2 and Section 10 of Declaration of Rights in the Constitution of Rhode Island where the person charged,

A. Is not a member of the exempted class, and

B. Is not charged with conduct emanating from a theater premises?"

The statute which was in force at all times relevant to this indictment reads as follows:

"11-31-1. Circulation of obscene publications. Every person, firm, corporation or association who shall knowingly import, print, publish, sell, lend, give away, advertise for sale, or distribute any book, magazine, pamphlet, ballad, printed paper, written material, print, picture, photograph, figment or other material Which is obscene, or who shall knowingly introduce any such book, magazine, pamphlet, ballad, printed paper, written material, print, picture, photograph, figment or other material into the family of another or into any school or place of education, or who shall knowingly buy, procure, receive, or have in his possession any such book, magazine, pamphlet, ballad, printed paper, written material, print, picture, photograph, figment or other material either for the purpose of sale, exhibition, loan or circulation, or with intent to introduce the same into the family of another, or into any school or place of education, shall be imprisoned for a term not to exceed two (2) years or shall pay a fine which shall not be more than one thousand dollars ($1,000) and not less than one hundred dollars ($100)." (Emphasis added). ¹

We consider first the certified question regarding the constitutionality of § 11-31-1 under both the United States and Rhode Island Constitutions. The foregoing statute had remained basically unchanged since it was codified as G.L. 1896, ch. 281, § 13. Throughout its slightly modified forms the statute had purported to proscribe and impose punishment for the circulation and distribution of obscene books, written material, prints, pictures or other materials. The statute had never contained a definition of the term "obscene."

The issue of obscenity received an authoritative national interpretation from the opinion of the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In that case a majority of the justices held that obscenity was not protected under the First and Fourteenth Amendments to the United States Constitution against state or federal regulation or prohibition. The Court there defined obscenity 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. . . .' " 354 U.S. at 487 n.20, 77 S.Ct. at 1310 n.20, 1 L.Ed.2d at 1508 n.20.

Although five members of the Court agreed on the foregoing definition in Roth, this abstract agreement was soon to disintegrate into a number of conflicting points of view. Within a decade after Roth, the justices might be grouped illustratively as follows. Justices Black and Douglas asserted consistently that neither state nor federal governments had the power to regulate any sexually oriented matter on the ground of obscenity. See, E. g., Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (concurring opinion); Roth v. United States, Supra (dissenting opinion). Mr. Justice Harlan believed that the federal government could only control distribution of "hard core" pornography, but that the states had more latitude under rationally established criteria to ban material which treated sex in a fundamentally offensive manner. Jacobellis v. Ohio, Supra (dissenting opinion). Mr. Justice Stewart regarded "hard core" pornography as the only type of obscenity which would be subject to proscription by either state or federal law. He observed:

"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 * * * ." Jacobellis v. Ohio, 378 U.S. at 197, 84 S.Ct. at 1683, 12 L.Ed.2d at 803-04 (concurring opinion).

In the same case Mr. Justice Brennan in an opinion in which Mr. Justice Goldberg joined suggested that the limits of the candor of expression of an allegedly obscene work must be determined on the basis of a national standard, Id. at 195, 84 S.Ct. at 1682, 12 L.Ed.2d at 802, while Chief Justice Warren with whom Mr. Justice Clark joined in dissenting asserted that obscenity is to be defined by reference to community standards not a national standard. He observed that "there is no provable 'national standard' and perhaps there should be none." Id. at 200, 84 S.Ct. at 1685, 12 L.Ed.2d at 805. Justice White concurred only in the judgment as opposed to the rationale in Jacobellis.

Later in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) a plurality of the Court consisting of Justice Brennan, Chief Justice Warren and Justice Fortas enunciated a modification of the Roth test of obscenity. Under the new test the presence of three elements which were required to coalesce was a prerequisite to establishing that material was obscene and therefore subject to a governmental control:

"(I)t 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." Id. at 418, 86 S.Ct. at 977, 16 L.Ed.2d at 5-6.

At no time, however, did a majority of the Court embrace this formulation. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82, 93 S.Ct. 2628, 2646, 37 L.Ed.2d 446, 472 (1973) (Justice Brennan, dissenting opinion). In the face of this divergence of opinion as exhibited in the foregoing cases, as well as in Ginzburg v. United States, Supra, and in Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), the Court proceeded to adopt a new ad hoc technique. In Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), the Court in a per curiam opinion reversed convictions for dissemination of materials that at least five members of the Court, applying their separate tests, deemed not to be obscene. In addition to Redrup, 31 other cases were disposed of in this fashion. See citations to 31 cases in Paris Adult Theatre I v. Slaton, Supra, 413 U.S. at 83 n.8, 93 S.Ct. at 2647 n.8, 37 L.Ed.2d at 472 n.8.

In this context of confusion and ambiguity, the Supreme Court again attempted to meet the challenge of what Mr. Justice Harlan had called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225, 243 (1968) (concurring and dissenting). In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) the Court formulated a new definition of the term "obscene," reaffirming the principles of Roth, but rejecting the third element of the three-pronged test of Memoirs. This new formulation was expressed as follows:

"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (citation omitted); (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. We do not adopt as a constitutional standard the 'Utterly without redeeming social value' test of Memoirs v. Massachusetts, (citation omitted); that concept has never commanded the adherence of more...