State v. Marshall

• Decision Date: 17 May 1993
• Citation: 859 S.W.2d 289
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Dudley W. MARSHALL and Carolyn A. Swanson, Defendants-Appellants.
• Court: Tennessee Supreme Court

Page 289

859 S.W.2d 289

STATE of Tennessee, Plaintiff-Appellee, v.Dudley W. MARSHALL and Carolyn A. Swanson, Defendants-Appellants.

Supreme Court of Tennessee at Jackson.

May 17, 1993.

Rehearing Denied Aug. 2, 1993.

Frierson M. Graves, Jr., Michael F. Pleasants, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, for defendants-appellants.

Charles W. Burson, Atty. Gen. & Reporter, Jerry Smith, Deputy Atty. Gen., Joel W. Perry, Asst. Atty. Gen., Nashville, for plaintiff-appellee.

John E. Herbison, Donald E. Dawson, Nashville, for amicus curiae The Tennessee Ass'n of Criminal Defense Lawyers.

Michael A. Bamberger, Jacqueline S. Glassman, New York City, F. Clay Bailey, Barry Friedman, Nashville, for amici curiae American Booksellers Ass'n, et al.

OPINION

DROWOTA, Justice.

Permission to appeal has been granted to the Defendants-Appellants, Dudley W. Marshall and Carolyn A. Swanson, for the limited purpose of determining whether the statutes pursuant to which the Defendants were convicted of possession with intent to distribute obscene material (T.C.A. §§ 39-6-1101(5)and39-6-1104(a)) violate Article I, Section 19 of the Tennessee Constitution.

The Defendants, who were employed as retail clerks in a bookstore called Paris Adult Theater in Memphis, were arrested on July 28, 1987 for their roles in selling a video cassette tape entitled "Anal LustNo. 1" to two Memphis police officers who were posing as customers.In the Criminal Court for Shelby County, a jury found the Defendants guilty of violating T.C.A. § 39-6-1104(a).Each of the Defendants was sentenced to serve four months in the Shelby County workhouse and was assessed a fine of $500.00.

The Defendants' convictions were upheld by the Court of Criminal Appeals.With respect to the issues raised by the Defendants under Article I, Section 19 of the Tennessee Constitution, the Court of Criminal Appeals relied on this Court's decision in Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738(Tenn.1979).

This Court granted, on a limited basis, the Defendants' application for permission to appeal for purposes of considering the Tennessee constitutional issue.

As in effect at the time of Defendants' arrest on July 28, 1987, T.C.A. § 39-6-1104 provided, in pertinent part, as follows "(a) It shall be unlawful to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter."

The term "obscene" was defined, for purposes of T.C.A. §§ 39-6-1101 through 39-6-1115, in T.C.A. § 39-6-1101(5) as follows:

"(A) That the average person applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(B) That the work depicts or describes, in a patently offensive way, sexual conduct; and

(C) That the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

The provisions of T.C.A. §§ 39-6-1104(a)and39-6-1101(5) that were in effect in 1987 are currently codified, in substantially the same form, as T.C.A. §§ 39-17-902(a)and§ 39-17-901(10), respectively.

PERIPHERAL ISSUES

The only issue that is before the Court is whether the provisions of T.C.A. §§ 39-6-1104(a)and§ 39-6-1101(5), quoted above, are in violation of Article I, Section 19 of the Tennessee Constitution.The portion of Article I, Section 19 that is pertinent to this case is as follows:

"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."

We are dealing with a single, narrow issue.It is an issue that should not be confused with other issues that are not before the Court.To provide a clearer understanding of the limited nature of the issue before us, it may be helpful to specifically identify and list several peripheral issues that are not before us.

One issue that is not before the Court is whether the tape that the Defendants were convicted of possessing with intent to distribute, entitled "Anal LustNo. 1," was "obscene" for purposes of T.C.A. §§ 39-6-1104(a)and§ 39-6-1101(5).This issue was not before the Court of Criminal Appeals(the Court of Criminal Appeals stated: "Although no challenge is made to the question of whether the tape was obscene, we have examined it and there is no question that it is."), and this issue is not before this Court.For purposes of this opinion, it is taken as true that the Defendants possessed "obscene matter" with intent to distribute it.

Another issue that should not be confused with the issue before us is whether T.C.A. §§ 39-6-1104(a)and§ 39-6-1101(5) violate the First Amendment to the United States Constitution.This Court's decision in Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738(Tenn.1979), decided in accordance with the mandate of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973), established that these statutes are not in violation of the First Amendment to the Constitution of the United States.

We are not called upon to decide whether this Court has the authority to declare that the statutes under consideration violate Article I, Section 19 of the Tennessee Constitution.This Court clearly does have such authority.In Miller v. State, 584 S.W.2d 758(Tenn.1979), the Court made the following observation:

"As to Tennessee's Constitution, we sit as the court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees.But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution.It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the stateconstitution, and this is true even where the state and federal constitutions contain similar or identical provisions."584 S.W.2d, at 760.

TENNESSEE OBSCENITY CASES UNDER ARTICLE I, SECTION 19

In Robert Arthur Management Corp. v. State, 220 Tenn. 101, 414 S.W.2d 638(1966), this Court upheld an injunction prohibiting the distribution of a motion picture film that was alleged to be obscene.In the process of upholding the injunction, the Court stated as follows:

"Under the Constitution of the United States, obscenity is excluded from constitutional protection since it is utterly without redeeming social importance.Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498(1957);Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793(1964).Likewise under the Constitution of the State of Tennessee obscenity has no protection."(Emphasis added.)220 Tenn. 101, at 104, 105, 414 S.W.2d 638.

In Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738(Tenn.1979), this Court held that the Tennessee Obscenity Act of 1978 violated the First Amendment of the United States ConstitutionandArticle I, Section 19 of the Tennessee Constitution.The Court described the result of its holding in that case as follows:

"However, this does not leave Tennessee without a criminal obscenity law.An unconstitutional act that purports to supersede or repeal an existing law is ineffective to do so, since a void law has no force and effect.State v. Dixon, 530 S.W.2d 73, 74-75(Tenn.1975), and cases cited therein.The result is that the prior obscenity law, 1974 Tenn.Pub.Acts, ch. 510, as amended, is in full force and effect."582 S.W.2d at 740.

The statutes that are before the Court in this case are part of the legislation that was enacted by Public Acts of 1974, Chapter 510, which, following this Court's holding in Leech v. American Booksellers Ass'n, Inc., supra, were "in full force and effect."

In the process of concluding that the Tennessee Obscenity Act of 1978 violated both the federal and state constitutional provisions dealing with freedom of speech, this Court stated, in Leech v. American Booksellers Ass'n, Inc., as follows:

"This Court is of the opinion that the Tennessee constitutional provision assuring protection of speech and press, Tenn. Const. art. I, § 19, should be construed to have a scope at least as broad as that afforded those freedoms by the first amendment of the United States Constitution.

It is settled constitutional law that state supreme courts may not restrict the protection afforded by the federal constitution, as interpreted by the United States Supreme Court, but they may expand constitutional protections, even where the state and federal constitutions contain similar or identical provisions.

Thus, this Court may interpret Article I, § 19, as granting absolute protection to speech and press and forbid any and all regulation of pornography in Tennessee.We have no inclination to do so."582 S.W.2d at 745.

In addressing the issue before us in this case(whether Article I, Section 19 of the Tennessee Constitution affords greater protection to obscenity than is granted by the First Amendment of the United States Constitution), we are revisiting the identical issue that was presented in Leech v. American Booksellers Ass'n, Inc.

HISTORICAL BACKGROUND OF ARTICLE I, SECTION 19 OF THE TENNESSEE CONSTITUTION

The Constitution of Tennessee that is currently in effect, including Article I, Section 19 thereof, was adopted on May 5, 1870.The 1870Constitution replaced a Constitution that was adopted by convention in Nashville in 1834, submitted to a general vote in 1835 and became effective by a...