Taylor v. State ex rel. Kirkpatrick

Decision Date20 October 1975
Citation529 S.W.2d 692
PartiesGrady TAYLOR et al., Appellants, v. STATE of Tennessee on relation of Carl K. KIRKPATRICK, District Attorney General for Sullivan County, Tennessee, Appellee. Grady TAYLOR and Eastern Amusement, Inc., a corporation, Appellants, v. STATE of Tennessee on relation of Carl K. KIRKPATRICK, District Attorney General for Sullivan County, Tennessee, Appellee.
CourtTennessee Supreme Court

Harry C. Bowyer, Kingsport, Frierson M. Graves, Jr., Heiskell, Donelson, Adams, Williams & Wall, Memphis, for appellants.

William C. Koch, Jr., Asst. Atty. Gen., Nashville, R. A. Ashley, Jr., Atty. Gen., for appellee.


BROCK, Justice.

The issues in the three captioned causes are identical and involve the construction and validity of Chapter 510, Public Acts of 1974, regulating obscenity. We are deciding all of them in this single opinion. In each case the trial court has found certain motion picture films being exhibited to the public by the appellants to be obscene according to the provisions of Chapter 510 of the Public Acts of 1974, codified as T.C.A. §§ 39--3010--39--3022. Under the provisions of that Act, the Court has permanently enjoined the defendants from further exhibition of the films and ordered that said films be remanded to the custody of the clerk of the Court and by him made available for use as evidence in any criminal case which might be brought arising out of the exhibition of said films, or, in the event no such criminal prosecution ensued, that the films be destroyed, all as provided by the terms of said Chapter 510 of the Public Acts of 1974.


The primary insistence of the appellants is that the Act in question is unconstitutional for various reasons. The first insistence made is that the Act, in general, and Section 3(A) thereof, in particular, in defining unlawful conduct does not contain a requirement of 'scienter' and for this reason is unconstitutional. Defendants rely upon Ellenburg v. State, 215 Tenn. 153, 384 S.W.2d 29 (1964) and Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). The pertinent language of the statute is as follows:

'Section 2.

'(F) 'Knowingly' as used above means having actual or constructive knowledge of the subject matter. A person shall be deemed to have constructive knowledge of the contents if he has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.

'Section 3. (A) It shall be unlawful to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute, any obscene matter. It shall be unlawful to direct, present, or produce any obscene theatrical production or live performance and every person who participates in that part of such production which renders said production or performance obscene is guilty of said offense.'

We conclude that the quoted language clearly requires scienter in the only sense in which it is demanded by the First Amendment. To render constitutional a statute which prohibits the exhibition or distribution of obscene material, it is not necessary to require that a defendant know or believe that the material in question is legally obscene; it is sufficient to require that the defendant have knowledge of the contents or character of the obscene material. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606 (1896); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In Hamling the Supreme Court said:

'We think the 'knowingly' language of 18 U.S.C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributes, and that he knew the character and nature of the materials. To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of 18 U.S.C. § 1461 or by the Constitution.' (Emphasis added.) Id. 94 S.Ct. at 2910--2911.

In the Rosen case the Supreme Court, in rejecting a claim that it was constitutionally necessary to show that the defendant knew or believed that the material in question was obscene, stated:

'The statute is not to be so interpreted. The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States.' Id. 16 S.Ct. at 438.

In the Mishkin case the Supreme Court, after nothing that the New York statute in question had been construed to require an awareness on the part of the defendant of the character of the obscene material distributed, said:

'The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by (the New York statute) amply serves those ends, and therefore fully meets the demands of the Constitution.' Id. 86 S.Ct. at 965.

Obviously, the statute before us complies with the scienter requirement of the First Amendment as construed in the foregoing cases. Section 3(A) requires that the prohibited act of exhibition, distribution, etc., be knowingly done; and, 'knowingly' is defined in Section 2(F) as meaning actual knowledge of the subject matter or actual knowledge of facts which would put a reasonable and prudent man on notice of the suspect nature of the material in question. Ellenburg v. State, supra, and Smith v. California, supra, are simply not in point for the reason that in those cases the courts were dealing with statutes which required no knowledge by the defendant of the contents of the alleged obscene material which he distributed or exhibited. The defendants would have us give to Section 3(A) a strained construction by holding that the word 'knowingly' applies only to importation into this state of obscene material and does not apply to the remainder of said section dealing with acts within the state of Tennessee. We refuse to do violence to the legislative intent by giving the statute such a construction. It must be remembered that the Legislature, when considering this statute, had the benefit of the wisdom that in Ellenburg v. State, supra, this Court had held the predecessor to this statute unconstitutional because it did not require scienter. As we construe this Act, the element of scienter is required for every offense defined by the Act. We, therefore, conclude that the contention of the appellants that Chapter 510 of the Public Acts of 1974 violates the First Amendment to the Constitution of the United States in that it allegedly fails to require scienter is without merit. Cf. ABC Books, Inc. v. Benson, 315 F.Supp. 695 (Tenn.1970).


Next, the defendants assert that the definitions contained in Section 2(H) of the Act are so vague and indefinite that they violate Article I, § 19 of the Constitution of Tennessee and the First and Fourteenth Amendments of the United States Constitution. Section 2(H) provides:

"Sexual conduct' as used above shall be construed to mean:

'(1) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. A sexual act is simulated when it depicts explicit sexual activity which gives the appearance of ultimate sexual acts, anal, oral or genital. The term 'ultimate sexual acts' shall be construed to mean sexual intercourse, anal or otherwise, fellatio, cunnilingus or sodomy, or (2) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.'

Section 2(I) defines 'patently offensive' as meaning 'that which goes substantially beyond customary limits of candor in describing or representing such matters.' These definitions in Section 2(H) and 2(I) constitute further refinements of the definition of 'obscene' found in Section 2(A) of the Act which provides:

"Obscene' means (1) that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) that the work depicts or describes, in a patently offensive way, sexual conduct, and (3) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'

In our view, the contention that the foregoing definitions are unconstitutionally vague cannot be seriously maintained.

"The Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . ..' United States v. Petrillo, 332 U.S. 1, 7--8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. . . . 'That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact...

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7 cases
  • State v. Davis
    • United States
    • Tennessee Court of Criminal Appeals
    • March 17, 1983
    ...any subject, being responsible for the abuse of that liberty. However, the appellants candidly admit that in Taylor v. State ex. rel. Kirkpatrick, 529 S.W.2d 692, 699 (Tenn.1975), our Supreme Court held these statutes to be constitutional. Our Supreme Court having addressed this issue, its ......
  • State v. Hunt
    • United States
    • Tennessee Court of Criminal Appeals
    • July 14, 1983
    ...of pornography. Our Supreme Court has held that this particular section of the statute to be constitutional. Taylor v. State, ex rel. Kirkpatrick, 529 S.W.2d 692, 696 (Tenn.1975). Our Supreme Court having addressed this issue, its determination is conclusive and binding on this court and al......
  • State v. Pendergrass, C
    • United States
    • Tennessee Court of Criminal Appeals
    • September 20, 1989
    ... ... See Leech v. American Booksellers Assoc., Inc., 582 S.W.2d 738 (Tenn.1979); Taylor v ... State ex rel. Kirkpatrick, 529 S.W.2d 692 (Tenn.1975); State v. Davis, 654 S.W.2d 688 ... ...
  • State v. Rollins
    • United States
    • Tennessee Court of Criminal Appeals
    • October 25, 1989
    ...Ass'n, Inc., supra, at 745. Secondly, the Tennessee Supreme Court has upheld the obscenity statute in Taylor v. State ex rel. Kirkpatrick, 529 S.W.2d 692 (Tenn.1975). Furthermore, with reliance on Taylor and Leech, this Court has refused to interpret Article I, Section 19 of the Tennessee C......
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