State v. Oman, 38383

• Citation: 110 N.W.2d 514,261 Minn. 10
• Decision Date: 01 September 1961
• Docket Number: No. 38383,38383
• Parties: STATE of Minnesota, Plaintiff, v. Arvid OMAN, Defendant.
• Court: Minnesota Supreme Court

Page 514

110 N.W.2d 514

261 Minn. 10

STATE of Minnesota, Plaintiff, v. Arvid OMAN, Defendant.

No. 38383.

Supreme Court of Minnesota.

Sept. 1, 1961.

Rehearing Denied Sept. 28, 1961.

Syllabus by the Court

1. Obscenity is not within the area of constitutionally protected speech or press.

2. Lack of precision in obscenity statutes is not itself offensive to the requirements of due process. All that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.

3. A reading of Minn.St. 617.24 as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised and a mere omission of the word 'scienter' need not be construed as an attempt to eliminate that common-law element of the crime.

4. No statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law. Thus, although our statute might possibly be interpreted to exclude scienter, we feel that the statute was not intended to unreasonably restrict or inhibit our inalienable liberty protected by due process.

5. The words 'obscene or indecent' as used in § 617.24 proscribing the sale or possession for sale of such matter are not unconstitutionally indefinite, even though the standards by which obscenity is judged might have changed through the years, and such standards might vary as between individuals.

6. We do not agree that § 617.24(1) is ambiguous. It is our view that there is nothing in the statute that would prevent the words 'obscene or indecent' from being construed according to their common and approved usage.

7. We are bound by the decisions of the United States Supreme Court as to what the due process clause of the Fourteenth Amendment prohibits; but, in interpreting our own clause, we are not bound to follow what that court says is not a violation of the Fourteenth Amendment.

8. The charge against defendant of having violated § 617.24(1) prohibiting sale of obscene or indecent magazines or having the same in his possession with intent to sell does not, in our judgment, clearly eliminate the element of scienter nor impose a strict and absolute criminal liability.

9. We adopt the rule that if the dominant theme of material, taken as a whole and considered by contemporary community standards, appeals to prurient interest it is 'obscene or indecent' within statute proscribing the sale or possession for sale of such matter. § 617.24(1). Einer C. Iversen, County Atty., Waseca, Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, for plaintiff.

William Nierengarten, Austin, for defendant.

NELSON, Justice.

The defendant was charged with unlawfully selling and having in his possession, with intent to sell, certain obscene or indecent magazines, pamphlets, or story papers containing pictures and photographs, in violation of Minn.St. 617.24, ¹ said violation constituting the crime of selling and possessing indecent literature against the form of the statute.

The defendant demurred to the information on the following specific grounds:

'(A) That on its face the information does not substantially conform to the requirements of Sec. 628.10 to Sec. 628.13, as qualified by Sec. 628.18, all in violation of M.S.A., Sec. 630.23. That the objection of M.S.A., Sec. 628.10 and M.S.A., Sec. 628.18 both refer to the fact that the information shall contain a statement of acts constituting the offense in ordinary and concise language and that the act or omission charged as the offense be clearly and distinctly set forth in the information.

'(B) That the facts stated in the information do not constitute a public offense within the meaning of M.S.A., Sec. 630.23, Subd. 4.

'(C) That M.S.A., Sec. 617.24 is unconstitutional in that the words 'obscene' or 'indecent,' standing alone undefined in the statute do not conform to constitutional requirements with regard to what constitutes the crime involved.

'(D) That M.S.A., Sec. 617.24 is unconstitutional in that it deprives defendant of his right to the exercise of freedom of speech and freedom of press and liberty of circulation, all as guaranteed by the provisions of Article I, Sec. 3 and Article, I, Sec. 7 of the Constitution of Minnesota as well as the due process provisions of the First and Fourteenth Amendments to the Constitution of the United States.

'(E) That the application of M.S.A., Sec. 617.24 to the above action, as proposed by the State of Minnesota in its information, would be in clear violation of the foregoing State and Federal Constitutional limitations thereon.'

The trial court overruled the demurrer certifying the questions of law arising upon the demurrer to be so important or doubtful as to require a decision of this court.

The defendant contends that the terms 'obscene' and 'indecent,' forming the crux of the information, are so vague and indefinite of meaning that they fail to comply with the requirements of Minnesota statutes governing the terminology used in criminal information and that therefore the information fails by its own terms.

In the instant case three magazines were introduced at the preliminary hearing in municipal court. The criminal complaint filed with that court alleged that defendant sold and had in his possession certain obscene and indecent magazines in violation of § 617.24. The presiding municipal judge upon completion of the preliminary hearing made an order stating:

'* * * this Court makes no ruling as to whether or not the defendant is innocent or guilty, but orders that he be bound over for trial in District Court.'

1. The United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, held that the standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. The court further held that obscenity is not within the area of constitutionally protected speech or press either under the First or Fourteenth Amendment. In that regard the court in the Roth case stated (354 U.S. 481, 77 S.Ct. 1307, 1 L.Ed.2d 1505):

'The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. * * *

'All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.'

No fact issue has been presented in the instant case concerning the obscenity of the material involved since no testimony was taken in the court below.

The defendant cites and relies upon Smith v. People of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In reversing People v. Smith, 161 Cal.App.2d Supp. 860, 327 P.2d 636, the United States Supreme Court commented (361 U.S. 154, 80 S.Ct. 219, 4 L.Ed.2d 212):

'We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, we consider today only one which goes to the extent of eliminating all mental elements from the crime.

'We have said: 'The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' Roth v. United States, * * *. This ordinance opens that door too far. The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. (City of) Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.'

The ordinance involved in that case, Municipal Code of the City of Los Angeles, § 41.01.1, provided:

'It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind in any of the following places: * * *.'

The Los Angeles ordinance imposed a strict or absolute...