State v. Walden Book Co.

• Decision Date: 03 July 1980
• Docket Number: No. 67768,67768
• Citation: 386 So.2d 342
• Parties: 6 Media L. Rep. 1696 STATE of Louisiana v. WALDEN BOOK COMPANY, Southland Corporation, General Host, Pearson's Pharmacy, Shreveport News Agency, Inc. et al.
• Court: Louisiana Supreme Court

Page 342

386 So.2d 342

6 Media L. Rep. 1696

STATE of Louisiana v. WALDEN BOOK COMPANY, Southland Corporation, General Host Pearson's Pharmacy, Shreveport News Agency, Inc. et al.

No. 67768.

Supreme Court of Louisiana.

July 3, 1980.

Concurring Opinion Aug. 15, 1980.

David W. Robertson, Gravel, Robertson & Brady, Alexandria, for relator-intervenor.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Edward E. Roberts, Asst. Dist. Atty., for respondents.

DIXON, Chief Justice.

The question in this case is whether the June, 1980 issue of Penthouse magazine is protected under the First Amendment of the United States Constitution and Article 1, § 7 of the Louisiana Constitution of 1974 (freedom of the press). Certain pornography is not accorded the protection of the First Amendment, and may be regulated by the states under strictly drawn statutes and under federal constitutional standards as found by the United States Supreme Court. In Louisiana pornographic material is regulated under the carefully drafted "obscenity" statute, R.S. 14:106.

Louisiana's statutory scheme for the regulation of obscene conduct and material in R.S. 14:106 defines the crime of obscenity in several ways, and makes criminal the display, distribution and sale of "obscene material," which is further defined in some detail. Before there can be any prosecution, or even arrest, for distribution of obscene material (except for "explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts") there must be an adversary hearing, the sole issue at which "shall be whether the material is obscene."

On May 19, 1980 the state instituted such an adversary hearing under R.S. 14:106 F against five Rapides Parish booksellers, seeking a declaration that the June, 1980 issue of Penthouse magazine is obscene. All five defendants, instead of contesting the proceeding, chose to remove the publication from their shelves. Penthouse, Ltd., publisher of the magazine, intervened to defend the obscenity charge.¹ The district judge found the magazine to be obscene. We reverse the ruling of the district court and find that the June, 1980 issue of Penthouse magazine is not obscene because the publication, taken as a whole, does not lack serious literary, artistic, political, or scientific value under R.S. 14:106A(3).

The district court's determination that material is or is not obscene presents an issue of law fully reviewable by this court. See R.S. 14:106F(3). The factual determination of obscenity by the district judge is subject to full appellate review, to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); State v. Luck, 353 So.2d 225 (La.1977). The United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) recognized that every obscenity case involves an exercise of constitutional judgment, and that the scope of review must be broader than that of a more conventional factual determination. For this reason there must be an independent review to determine if the challenged material is in fact "obscene."

The United States Supreme Court established basic guidelines governing obscenity in the Miller case, supra, and these guidelines have been followed in R.S. 14:106. That statute defines obscene material as:

". . . any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct . . . and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value."

In State v. Luck, supra, this court established the rule that the state bears the burden of proving that material is obscene beyond a reasonable doubt. This rule accomplishes the statutory purpose of preventing undue invasions or inhibitions of constitutionally protected expression. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976). Therefore, proof of each of the three elements of obscene material must be established beyond a reasonable doubt.

An examination of the magazine reveals that the state has proven beyond a reasonable doubt that: the magazine taken as a whole appeals to the prurient interest at least in effect (the sexual orientation is neither minor nor subordinate); and depicts or describes in a patently offensive way, hard core sexual conduct. Whether the magazine, taken as a whole, lacks serious literary, artistic, political, or scientific value requires a closer analysis.

There has been hardly any development in the jurisprudence of this essential element of "obscene material" since Miller v. California, supra. The meaning of "work, taken as a whole," occupies a significant position in the test for obscenity. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court held that an entire book could not be condemned as obscene because of isolated obscene passages in it. "Taken as a whole" reflects a standard which would permit the banning of unarguably obscene work only as a discrete unit.

The United States Supreme Court has examined several magazines, using the "taken as a whole" standard since the isolated excerpt approach was first rejected in Roth. In Manual Enterprises v. Day, 370 U.S. 478, 489, 82 S.Ct. 1432, 1438, 8 L.Ed.2d 639, 648 (1962), the court rejected the government's "isolated excerpt" approach, stating:

". . . Whether 'hard-core' pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency.

We cannot accept in full the Government's description of these magazines which, contrary to Roth . . ., tends to emphasize and in some respects overdraw certain features in several of the photographs, at the expense of what the magazines fairly taken as a whole depict. . . ."

Again, in Ginsburg v. United States, 383 U.S. 463, 466, 86 S.Ct. 942, 945, n.5, 16 L.Ed.2d 31, 35 (1966), the court stated:

"Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting."

The language of Manual Enterprises and Ginsburg supports the idea that magazines generally are to be considered as whole works even though they are made up of separate articles. Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (C.A. 5th Cir. 1980). An exception occurs when there is a sham attempt to insulate obscene material with non-obscene material. See Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). The classic example of such a sham is the insertion of obscene material between books of the Bible.

Only by taking the magazine as a whole can it be determined whether it lacks serious literary, artistic, political, or scientific value.² The requirement that the value be "serious" does not mean that humorous or irreverent vehicles for value are to be rejected. The addition of the "serious" element allows the trier of fact to look to the intent upon which the insertion of literary, artistic, political, or scientific material is based. If that intent is to convey a literary, artistic, political, or scientific idea, or to advocate a position, then the intent is "serious." See Schauer, The Law of Obscenity, The Bureau of National Affairs, Inc. (1976).

In order to determine whether the magazine, taken as a whole, lacks serious value, it is necessary to weigh those portions of the magazine which possess serious value against those which do not. The contents of the magazine must be balanced quantitatively and qualitatively to take the work as a whole.

An analysis of the magazine reveals the following quantitative results:

Total pages, 228;

Full page advertisements (of nationally advertised products), 65;

Articles with serious value, 67 pages;

Articles lacking serious value, 96 pages.

The editorial policy of Penthouse magazine is to provide entertainment for men. The features in the June, 1980 issue of Penthouse are consistent with the editorial philosophy. Included is an article about how the economy is affected by the interactions of OPEC and the United States banking industry; an article about the execution of a Saudi Arabian princess which was the subject of a controversial PBS television documentary; an essay entitled "Stop the Draft" which explores why the volunteer army is not working; an interview with child evangelist Michael Lord; an article discussing the pros and cons of various cameras; an excerpt from a new novel about the goings on in a circus; a fashion layout showing swimwear; a consumer report on the Volkswagen Rabbit convertible; reviews of travel spots, movies, books and music, in addition to stories and articles dealing with sex-related subjects and photographs of nude women which depict hard-core sexual conduct.

Each serious article bears the name of the author, who is further identified with picture and thumbnail sketch in an introductory essay. Like the national advertising, the articles are like those to be found in many other periodicals which contain little or no "obscene" material. The subject of Robert Sherrill's article on OPEC and the American banking and financial interests is of great political and economic importance, is...