State v. Reese

• Citation: 222 So.2d 732
• Decision Date: 07 May 1969
• Docket Number: 37599,Nos. 37598,s. 37598
• Parties: STATE of Florida, Appellant, v. Thomas Bruce REESE, Appellee (two cases).
• Court: United States State Supreme Court of Florida

Page 732

222 So.2d 732

STATE of Florida, Appellant, v. Thomas Bruce REESE, Appellee (two cases).

Nos. 37598, 37599.

Supreme Court of Florida.

May 7, 1969.

Rehearing Denied June 11, 1969.

Earl Faircloth, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellant.

David Linn, of White, Phipps, Linn, Furnell & Mahorner, Clearwater, for appellee.

ROBERTS, Acting Chief Justice.

Appellant was charged in two separate informations with possession of obscene material contrary to § 847.011(2), Fla.Stat.1967, F.S.A. Both informations were dismissed by the trial judge upon motion of the appellant charging that § 847.011, Fla.Stat.1967, F.S.A., was unconstitutional and void for failure to prescribe a sufficiently ascertainable standard of guilt. The State has appealed directly to this court from the order of dismissal entered in each case, and the cases have been consolidated for the purpose of appeal. We have jurisdiction of the appeals under § 4(2), Article V, Florida Constitution, F.S.A.

Sec. 847.011, Fla.Stat.1967, F.S.A., denounces the possession or sale of 'any obscene, lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic' book, magazine, picture or similar material. Subsection (10) of the section provides that

'For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

This subsection was adopted by the Florida Legislature in 1961 following the decision of the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, (1959). In Roth, the court upheld, a federal statute denouncing the mailing of material that is 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character' as against a charge that the statute failed to provide a reasonably ascertainable standard of guilt. The court recognized that the terms of obscenity statutes are not precise and noted that this lack of precision does not, in and of itself, violate due process--that it is necessary only that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. A majority of the court adopted as a standard of obscenity the following (the so-called Roth test):

'Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

and held that the words of the obscenity statute in question--obscene, lewd, lascivious, filthy, indecent--when applied according to this standard, give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law.

Since Roth, there have been decisions in which members of the court have expressed other views respecting the standard to be applied in determining the question of obscenity. In Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), Mr. Justice Harlan, joined by Mr. Justice Stewart, opined that to be obscene the material must be 'patently offensive to contemporary community standards.' In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), Mr. Justice Brennan, joined by Mr. Justice Goldberg, noted that obscenity is not entitled to First Amendment protection because it is 'utterly without redeeming social importance.' Finally, in a Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), three members of the court as presently constituted (Chief Justice Warren, Mr. Justice Brennan, and Mr. Justice Fortas) concurred in holding that

'Under (the Roth) definition, as elaborated in subsequent cases, three elements must coalesce: it 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.'

These three members of the court again concurred in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), on the same ground as in Memoirs, supra, in voting for reversal of an obscenity conviction.

The appellee contends that these decisions have so modified the Roth test as to amount to an abandonment thereof, and that Subsection (10) of § 847.011 is therefore 'unconstitutional.' It appears to us, however, that a determination of the question of whether or not the Roth test has been abrogated by the United States Supreme Court will have no effect whatsoever on the question of the validity of the statute, § 847.011(2), which the appellee was charged with violating. There can be no doubt that prosecutions under an obscenity statute may be initiated and tried under a court-adopted standard of obscenity as well as under a legislatively prescribed one. See Roth v. United States, supra. The addition of Subsection (10) to § 847.011 was merely a legislative declaration of a judicial rule that had already been adopted by the courts of this state. See Rachleff v. Mahon, Fla.App.1st 1960, 124 So.2d 878; Gerstein v. 'Pleasure Was My Business,' Fla.App.3d 1961, 136 So.2d 8. Subsection (10) is clearly severable from the remainder of the Act under well established rules and the severability clause contained in the Act in which it was adopted. See Sec. 12, Ch. 61-7, Acts of 1961. If Subsection (10) were deleted from the statute, the situation would revert to what it was prior to its adoption, that is, the courts of this state could adopt the later pronouncements of the United States Supreme Court 'elaborating' upon the definition of obscenity made in Roth, as set forth in Memoirs, quoted above.

We have the view, however, that the Supreme Court did not intend to abrogate the Roth test. Certainly the three members of the court whose opinion in Memoirs is the mainstay of the appellee's position here, cannot be said to have abandoned it. Their opinion states unequivocally that, Under the Roth definition as elaborated in subsequent cases the three elements named must coalesce. And in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (decided in 1966, the same year as Memoirs) the court specifically recognized the Roth test as proper in determining whether materials are obscene and held that evidence that the materials were used in connection with pandering 'is relevant to the application of the Roth test.' In the brief painstakingly prepared on behalf of the State, the Attorney General has pointed out that two other members of the court have approved a test more liberal than that of the Roth definition as elaborated in Memoirs. (See the dissenting opinions of Mr. Justice White and Mr. Justice Harlan in Memoirs.) It would seem, therefore, that a conviction based on the Roth test as 'elaborated' in Memoirs would--or, at least, should--have a good chance of standing up under a due process attack made on it in the United States Supreme Court; and Subsection (10) of § 847.011, supra, can and should be interpreted, and the words of our obscenity statute applied, in the light of the clarification or 'elaboration' of the Roth test made in Memoirs, supra.

While Subsection (10) applies, in terms, only to 'obscene' material, the Supreme Court held in Roth that the words 'lewd, lascivious, filthy or indecent' are equivalent to 'obscene', so that this definitive provision of our obscenity statute would apply equally to these words. Sec. 847.011 also denounces 'immoral, sadistic, or masochistic' material. The words 'sadistic' and 'masochistic' have a well defined meaning and prescribe an ascertainable standard of guilt. The word 'immoral' has, however, been held to be unconstitutionally vague when used in a film-licensing statute. See Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225, 231. And the Attorney General has conceded that this word should be deleted from the statute. The elimination of the word 'immoral' would not interfere with the operation of the remainder of the statute, and it cannot be said that the Legislature would not have enacted the statute had it known that this word would be deleted. Accordingly, the word 'immoral' is severable and should be deleted.

The appellee has also asked this court to recede from its decision in Tracey v. State, Fla.1961, 130 So.2d 605, in which we held that § 847.011(2)--denouncing the possession of obscene material without intent to sell, etc.--was not unconstitutionally vague. The argument is made that one who is in the business of selling or distributing material that may be obscene is in a position to employ legal counsel to determine whether or not it is obscene; whereas, it is impossible for the average citizen of common intelligence, not in the business of exploiting commercially such material, to determine for himself what is legally obscene and what is not.

This argument overlooks the fact that lack of precision is not itself offensive to the due-process requirement, and that all that is required is that the language of the statute 'conveys sufficiently definite warning as to the proscribed conduct When measured by common understanding and practices * * *' United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877, quoted in the Roth case. (Emphasis supplied.) The Roth test itself is geared to the understanding of 'the average person, applying contemporary community standards'. We are not advised of the considerations that prompted the Legislature in 1961 to denounce the mere possession of obscene literature, without intent to sell etc., as a crime. It is well settled, however, that the courts are not...