State v. Settle

• Decision Date: 21 December 1959
• Docket Number: No. 636,636
• Parties: STATE v. Harry SETTLE. C. Q.
• Court: Rhode Island Supreme Court

Page 921

156 A.2d 921

90 R.I. 195

STATE v. Harry SETTLE.

C. Q. No. 636.

Supreme Court of Rhode Island.

Dec. 21, 1959.

J. Joseph Nugent, Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., for State.

Albert L. Greenberg, John C. Burke, Newport, Horace S. Manges, New York City, for defendant.

Milton Stanzler, Norman G. Orodenker, Providence, for Rhode Island Affiliate American Civil Liberties Union, amicus curiae.

FROST, Justice.

This is an indictment charging the defendant with selling to a person under the age of eighteen years a certain book which is obscene, lewd, lascivious and indecent. The case is before us under the provisions of General Laws 1956, § 9-24-27, on a certification by the superior court wherein the following questions involving the constitutionality of § 11-31-10 have been raised.

'Is Title 11, Chapter 31, Section 10, of the General Laws of Rhode Island, 1956, unconstitutional because it abridges the rights of the defendant to due process of law, freedom of speech, and freedom of the press, contrary to Section 1, Article 14 and Article 1, of the amendments to the constitution of the United States.

'Is Title 11, Chapter 31, Section 10, of the General Laws of Rhode Island, 1956, unconstitutional because it abridges the rights of the defendant to due process of law, freedom of speech, freedom of the press, and the right not to be deprived of life, liberty, or property unless by the judgment of his peers or the law of the land, contrary to Article 1, Section 10 and 20 of the constitution of the State of Rhode Island.'

Prior to the hearing before us the Rhode Island Affiliate American Civil Liberties Union sought and obtained our permission to file a brief as amicus curiae and its counsel also participated in the oral arguments.

General Laws 1956, § 11-31-10, reads as follows:

'Every person who shall wilfully or knowingly sell, lend, give away, show, advertise for sale or distribute commercially to any person under the age of eighteen (18) years or has in his possession with intent to give, lend, show, sell, distribute commercially, or otherwise offer for sale or commercial distribution to any individual under the age of eighteen (18) years any pornographic motion picture, or any still picture or photograph or any book, pocket book, pamphlet or magazine the cover or content of which exploits, is devoted to, or is principally made up of descriptions of illicit sex or sexual immorality or which is obscene, lewd, lascivious, or indecent, or which consists of pictures of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex, lust or perversion for commercial gain or any article or instrument of indecent or immoral use shall, upon conviction, be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for not more than two (2) years, or by both such fine and imprisonment.

'For the purposes of this section 'knowingly' shall mean having knowledge of the character and content of the publication or failure to exercise reasonable inspection which would disclose the content and character of the same.'

Those claiming the statute to be unconstitutional assert as reasons therefor that the wording is vague and indefinite; that it is so broad in its definitions as to encompass acts or words which are included in the constitutional freedoms of the First Amendment and are protected from state interference by the Fourteenth Amendment; that the penalty clause in the statute makes it punishable as a misdemeanor or a felony and that the indictment does not contain the name of the book and therefore is fatally defective. We shall consider the first two objections together.

The purpose of the statute is clear. It is for the protection of youth and to combat juvenile delinquency. The subject matter includes pictures, books, pamphlets and magazines of a certain type, namely, those which exploit or are principally made up of descriptions of illicit sex or sexual immorality or which are obscene, lewd, lascivious or indecent. Specifically the section is designed to prevent such publications from passing into the hands of boys and girls of an impressionable age and is directed against those who are dealing in such publications as a business. This is clear from the preamble of the statute when it was passed and from the language of the statute itself. The present statute, § 11-31-10, is a section of Public Laws 1956, chapter 3686, approved April 9, 1956, which was in amendment of and in addition to G.L.1938, chap. 610, and became sec. 48 of that chapter. The preamble of P.L.1956, chap. 3686, reads as follows:

'It is hereby declared that the publication, sale and distribution to minors of comic books devoted to crime, sex, horror, terror, brutality and violence, and of pocket books, photographs, pamphlets, magazines and pornographic films devoted to the presentation and exploitation of illicit sex, lust, passion, depravity, violence, brutality, nudity and immorality are a contributing factor to juvenile crime, a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the people of the state. Therefore, the provisions hereinafter prescribed are enacted and their necessity in the public interest is hereby declared as a matter of legislative determination.'

The title of § 11-31-10 is 'Sale or exhibition to minors of indecent publications, pictures, or articles.' The word 'commercially' not only modifies the word 'distribute' but it modifies each one of the preceding words, 'sell,' 'lend,' 'give away,' 'show,' and 'advertise for sale.' It is obvious from a reading of the statute that it is not directed against and does not embrace the father who gives to a youthful member of his family a book which comes under the ban of the law. The statute by its own terms is directed against those who, directly or indirectly for pecuniary gain, are possessing and handling publications of the sort described.

Counsel who oppose the views of the state contend that the statute is so vague and indefinite as to be unconstitutional; that in addition to proscribing any book the cover or content of which is obscene, lewd, lascivious or indecent, the statute goes on to condemn in the alternative any book the cover or content of which exploits, is devoted to or is principally made up of descriptions of illicit sex or sexual immorality, or which consists of pictures of nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion, or to exploit sex, lust, or perversion for commercial gain. We fail to see that the addition of the alternatives introduces into the statute any element of vagueness or uncertainy. Obscenity is not within the area of constitutionally protected speech or press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Lewd, lascivious and indecent are but synonyms of obscene. Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765. The alternatives mentioned are nothing more than examples of what is obscene, lewd, lascivious and indecent and are to a degree explanatory of the words used earlier.

Opponents of the state's views rely on Winters v. People of State of New York 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. Winters was a bookdealer in the city of New York who was convicted of having in his possession certain magazines with intent to sell them. Conviction was affirmed by the Appellate Division of the Supreme Court and later by the Court of Appeals. There was an appeal to the Supreme Court of the United States. The pertinent part of the New York Penal Law, McKinney's Consol.Laws, c. 40, § 1141 reads, 'A person who * * * has in his possession with intent to sell * * * any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime * * *.'

The court stated at page 519 of 333 U.S., at page 672 of 68 S.Ct., 'we find the specification of publications, prohibited from distribution, too uncertain and indefinite to justify the conviction of this petitioner.' Because the statute was in violation of the Fourteenth Amendment to the constitution of the United States, the conviction was reversed. The statute in the Winters case in the breadth of its language condemned the publication of what could be and frequently is considered to be legitimate news. We do not find in the instant statute such reasonable ground for uncertainty as to cause a person to be in doubt as to whether a particular book or article is included within the language of the statute.

The defendant also cites State v. Pocras, 166 Neb. 642, 90 N.W.2d 263, 267. Pocras, a newsdealer in the city of Lincoln, was convicted under an ordinance which read, 'It shall be unlawful * * * to sell or...