State v. Shreveport News Agency, Inc.

• Decision Date: 03 December 1973
• Docket Number: No. 53985,53985
• Citation: 287 So.2d 464
• Parties: STATE of Louisiana v. SHREVEPORT NEWS AGENCY, INC.
• Court: Louisiana Supreme Court

Page 464

287 So.2d 464

STATE of Louisiana v. SHREVEPORT NEWS AGENCY, INC.

No. 53985.

Supreme Court of Louisiana.

Dec. 3, 1973.

Rehearing Denied Jan. 11, 1974.

Robert J. Donovan, Jr., Naff, Kennedy, Goodman, Donovan & Parnell, Shreveport, for defendant-relator.

William J. Guste, Jr., Atty. Gen., LeRoy A. Hartley, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-respondent.

BARHAM, Justice.

The State filed 20 bills of information, each charging the defendant with a violation of the Louisiana obscenity statute, R.S. 14:106A(2) and (3). The State had seized twenty magazines and the seizure of each magazine constitutes the offense in the twenty separate bills of information. The defendant filed a motion to quash and a supplemental motion to quash, alleging in part that the bills of information were filed under statutory provisions which are unconstitutional and which deprive defendant of its constitutional rights under the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Defendant alleges that the statute is so vague and indefinite that it must fall since it does not give notice of the criminal activity intended to be proscribed. The defendant further contends that recent decisions of the United States Supreme Court have made the statute unconstitutional on its face for lack of specificity.

The defendant here is charged in each bill of information with violating R.S. 14:106A(3) by intentionally possessing, with intent to sell, exhibit, give, and advertise, a magazine which is obscene as defined by R.S. 14:106A(2). R.S. 14:106A(2) and (3) reads as follows:

'Obscenity is the intentional:

(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper * * *. ¹

(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in Paragraph (2) above, with the intent to primarily appeal to the prurient interest of the average person.'

In 1957 in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the United States Supreme Court held that obscenity is not within the area of constitutionally protected speech or press. Additionally, although Roth dealt with obscenity in the abstract, certain safeguards or standards were required of local statutes for the judging of obscenity in order that the statutory regulation not impinge upon First Amendment rights.

First, the Court differentiated between sex and obscenity and declared that sexual material which could be declared obscene was material whose Dominant theme taken as a whole appeals to prurient interests. Roth further discarded the concept of the impact of the material upon particularly susceptible persons and looked rather to the Effect of the material upon the average person applying contemporary community standards.

The Louisiana Legislature, apparently reacting to the Roth decision, amended R.S. 14:106(2) to read as above quoted, in 1960. In State v. Roufa, 241 La. 474, 129 So.2d 743 (1961) this Court held the particular section of the statute we consider to be constitutional, relying upon Roth v. United States. In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), the court transformed Roth's statement that Obscenity is 'utterly without redeeming social importance' into a third safeguard. The court stated:

'Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against its prurient appeal, For a work cannot be proscribed unless it is 'utterly' without social importance.' (Emphasis here and elsewhere supplied).

See also Kingsley International Pictures Corporation v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959).

Nine years after Roth, the Supreme Court reiterated the third safeguard for testing the constitutionality of a local statute regulating obscenity in A Book Named: 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), (hereinafter referred to as 'Memoirs'). There the court below had held under the 'social importance test' of Jacobellis that the material which appeals to prurient interests and is patently offensive need not be 'unqualifiedly worthless before it can be deemed obscene'. In Memoirs, the Supreme Court stated, '* * * A book cannot be proscribed unless it is found to be 'utterly' without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive.'

In State v. Henry, 250 La. 682, 198 So.2d 889 (1967), ² our Court considered the constitutionality of R.S. 14:106(2) again. The Court noted that the legislature had adopted the two safeguards required under the Roth decision. It did not meet the question of whether or not the statute met the third standard required under Jacobellis and Memoirs. However, the court did cite the companion cases to Memoirs, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), and Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), but for the holding that obscenity can be restricted and controlled without violating the First Amendment.

In State v. Gay Times, Inc., 274 So.2d 162 (La.1973), the majority of this Court stated, in light of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and the varying views of the several Justices of the United States Supreme Court in other opinions: '* * * Consequently, there is no easily ascertainable standard by which we may judge the constitutionality of the Louisiana obscenity statute as applied to moving picture film.' The Court then held: 'Under the Roth standards, we find the second section of R.S. 14:106 to be violative of neither the First and Fourteenth Amendments to the United States Constitution nor Art. I, § 10 of the Louisiana Constitution of 1921.'

At the time of the trial court's rulings on this defendant's motions it could be stated unequivocally that Louisiana's highest court had interpreted and applied the obscenity statute to prohibit the sale of All 'lewd, lascivious, filthy and sexually indecent' expression within the ambit of the Roth safeguards. A perusal of the evolution of the obscenity statute makes it clear that Our legislature intended to prohibit the display and distribution of All 'lewd, lascivious, filthy or sexually indecent' matter or materials which could constitutionally be prohibited. When the trial court ruled upon the defendant's motions to quash on the grounds of unconstitutionality, it was correct under the interpretation and application of that statute by the highest court of this state. However, the United States Supreme Court handed down five cases concerning obscenity statutes during its last term. We must decide the constitutionality of our statute under the latest pronouncement by the United States Supreme Court. The principle case which affects our decision is Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). ³

Before the Miller decision, material which was 'lewd, lascivious, filthy or sexually indecent' was obscenity and without First Amendment protection, if it were established that:

(A) The dominant theme of the material taken as a whole appealed to the prurient interest in sex;

(B) The material was patently offensive because it offended contemporary community standards relating to the description or representation of sexual matters;

(C) The material was utterly without redeeming social value.

Miller v. California reviewed a California statute which had been interpreted under the Memoirs test in the very same light as the criteria above enumerated. Chief Justice Burger, writing for the majority, stated that the case they reviewed was tried in the lower court on the theory that the statute incorporated the three-pronged Memoirs test. He wrote:

'* * * But now the 'Memoirs' test has been abandoned as unworkable by its author and no member of the Court today supports the 'Memoirs' formulation.'

The United States Supreme Court repudiated the Memoirs test which had been incorporated in part into our law by statute and to some extent by court interpretation. In repudiating the Memoirs test, the court stated that one part of the test:

'* * * called on the prosecution to prove a negative, i.e., that the material was 'utterly without redeeming social value'--a burden virtually impossible to discharge under our criminal standards of proof.'

The majority further found that the Roth and Memoirs test had never been approved by a majority of the court. As the United States Supreme Court in Miller laid down new tests for determining obscene material which could statutorily be controlled, it said:

'We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S. 676, at 682--685, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.'

The court then laid down the constitutional test for local control of obscenity by statute. It said:

'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 * * *, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct Specifically befined by the applicable...