State v. Voshart
| Decision Date | 07 June 1968 |
| Citation | 159 N.W.2d 1,39 Wis.2d 419 |
| Parties | STATE of Wisconsin, Respondent, v. E. B. VOSHART, Appellant. |
| Court | Wisconsin Supreme Court |
Bosshard, Sundet & Doyle, La Crosse, for appellant.
Bronson C. La Follette, Atty. Gen., William A. Platz and Betty R. Brown, Asst. Attys. Gen., Madison, Burleigh A. Randolph, La Crosse Co. Dist. Atty., La Crosse, for respondent.
This appeal challenges the constitutionality of the Wisconsin statute declaring 'lewd, obscene and indecent' materials to be contraband, 1 and the validity of the Wisconsin statute providing that, 'if a motion to suppress evidence is granted, property seized shall not be returned' if 'it is subject to confiscation.' 2
The challenge here is to the constitutionality of the Wisconsin contraband statute on its face, as applied to obscene films, photos and comic books. We do not deal here with what has been termed the 'finely drawn line' between what is obscene and what is not obscene. 3 No claim is made that the particular materials seized are not in fact obscene under any definition of the word. 4 Nor is any claim made that the adversary hearing at which the trial court determined the seized materials to be obscene did not meet constitutional requirements. 5 Nor is there any claim that the procedural steps taken did not meet the constitutional requirements of timeliness. 6
The issue presented is whether the statute on its face invades constitutionally assured rights of the appellant. This decision is limited to the issue raised. In a recent case, the United States Supreme Court upheld the constitutionality of a New York state statute 7 prohibiting the sale to minors under 17 years of age of books, magazines, photos or motion picture films which, taken as a whole, are 'harmful to minors.' 8 While one member of the court did not applaud the limited scope of review, 9 the plurality of the court considered only the constitutionality of the statute on its face. 10 In an earlier landmark case in this field involving the constitutionality of the federal anti-obscenity statute 11 and the constitutionality of the California anti-obscenity statute, 12 the United States Supreme Court held both statutes to be constitutional. 13 Once again, one member of the court challenged the limiting of the scope of review, 14 but the plurality of the court refused to take up the question of whether the particular materials involved were in fact obscene. 15 The route taken by the court plurality recommends itself as the proper course to follow in the case now before us.
Is it beyond the power of a state to include in its contraband statute obsene materials where such materials are movie films, photos or comic books? Appellant does not challenge nor appeal the trial court order that the punchboards seized be destroyed as gambling devices and, therefore, contraband. He leaves unchallenged and unappealed the trial court order for destruction of certain articles found to be obscene. He contends only that the movie films, photos and comic books are constitutionally insulated against being found to be articles of contraband.
Once the premise of obscenity in fact has been properly established and judicially determined, the conclusion clearly follows that printed or filmed materials have been given no such mantle of absolute immunity. In the recent Ginsberg case, the United States Supreme Court again stated, 'Obscenity is not within the area of protected speech or press,' 16 quoting with approval from the majority opinion in the Roth case, 'We hold that obscenity is not within the area of constitutionally protected speech or press.' 17
The First Amendment to the United States Constitution provides that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' This constitutional assurance of free speech and a free press was added to the original Constitution to insure the free exchange of ideas and information in our nation. It has been held by the Supreme Court of the United States to protect the distribution of bizarre works of art, controversial works of literature, as well as unorthodox expressions of personal or public opinion. Thus interpreted, the First Amendment does permit the circulation in the water supply of the nation of materials considered by many to be adulterated, in fact, contaminated. However, the First Amendment has not been held to protect the pumping of raw sewage into the water mains of our society. Obscenity, constitutionally defined and properly determined, is not protected by the First Amendment.
The words 'lewd, obscene or indecent' in the Wisconsin contraband statute must be interpreted in the constitutional sense, as including only printed or filmed materials that are not protected by the First Amendment to the United States Constitution as interpreted by the United States Supreme Court. States are free to adopt definitions of obscenity only to the extent that they stay within the bounds of the constitutional criteria set by the United States Supreme Court. 18 There appear to be two such definitions that have been given United States Supreme Court approval.
One is the Roth test, referred to in the recent Ginsberg case, 19 as '* * * the formulation for determining obscenity under Roth stated in the plurality opinion in a book Named 'John Cleland's Memoirs of a Woman of Pleasure v. Attorney General of Com. of Massachusetts.' 20 This is a three-pronged test. As capsulized in the Memoirs case, it requires: '(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.' 21 Where these three elements coalesce, under the Roth test, you have the distinct and identifiable obscenity which a state may constitutionally suppress,
The alternative definition defines 'obscene' as meaning 'hard core pornography.' In the case in which the United States Supreme Court upheld the constitutionality of a New York State anti-obscenity statute, 22 this definition, adopted by the New York Court of Appeals, was held to meet the constitutional criteria. 23 The New York appellate court described 'hard core pornography' as follows: ' 24
This 'hard core pornography' test has been described as most clearly indicating what may be considered to be obscene because '* * * it does describe something that most judges and others will 'know * * * when (they) see it.' * * * and that leaves the smallest room for disagreement * * *.' 25
For the purpose of this appeal, it is enough to observe that no issue is raised as to the obscenity in fact of the materials seized under the Roth test, the hard core pornography test or any definition of constitutionally unprotected obscenity. It is enough here to mention that the words, 'lewd, obscene and indecent,' in any event must be interpreted to include only materials that are outside the constitutional protection. We hold the materials here involved to be concededly obscene under either the Roth test or hard core pornography test. This being the situation, we find that the Wisconsin contraband statute, so limited to a constitutionally permitted test as to the fact of obscenity, provides reasonable standards for judicial determination of whether seized materials were obscene within the meaning of the statute.
Appellant's further contention is that since the search warrant under which the property involved was seized was later declared to be invalid and the criminal complaint dismissed, he is, by that fact alone, entitled to the return of the property seized. We do not think so. This argument, without naming the statute involved, challenges sec. 963.025, providing that, if a motion to suppress evidence is granted, property seized shall not be returned if it is 'subject to confiscation.' If the evidence is suppressed, must the seized property be returned in all situations?
Motions for the suppression of evidence and for the return of seized property are often made together. However, they are separate, at least separable, motions. If the motion to suppress evidence is granted, it does not follow that the motion to return seized property must in all cases be granted. If the property involved is properly found to be contraband, and the contraband statute is found to be constitutionally valid, the property need not be returned. 26 Solely to establish that the right to suppress evidence does not necessarily include the right to return of property in possession of the sate, we quote cases involving various types of contraband, towit: Alcohol and distillery equipment, 27 narcotics, 28 and illegal furs. 29 The point made is that the law of contraband governs the right to return of property, not the law of search and seizure. In the area of written or filmed materials, it is additionally true that procedures...
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