United States v. Thevis
| Decision Date | 25 June 1971 |
| Docket Number | No. 70-72-Cr-J.,70-72-Cr-J. |
| Citation | 329 F. Supp. 265 |
| Parties | UNITED STATES of America v. Michael G. THEVIS and Peachtree News Company, Inc. |
| Court | U.S. District Court — Middle District of Florida |
John L. Briggs, U. S. Atty., Joseph W. Hatchett, Asst. U. S. Atty., Jacksonville, Fla., Larry Butcher, Justice Department, Washington, D. C., for the Government.
Robert E. Smith, Towson, Md., Norman J. Abood, Jacksonville, Fla., for defendants.
The Defendants, Michael G. Thevis and Peachtree News Company, Inc., entered a plea of not guilty to a twelve-count indictment charging them with violations of a Federal Obscenity Statute, to wit, Title 18, U.S.C., Section 1462.1 Count One of the indictment charges, "* * * that the Defendants, Michael G. Thevis and Peachtree News Company, Inc., did wilfully and knowingly cause a common carrier to be used for the carriage in interstate commerce of obscene, lewd, lascivious and filthy writings or prints, to wit: 38 copies of magazines entitled "Duo," from Atlanta, State of Georgia, to Springfield News Company, Jacksonville, Florida." The remaining eleven counts of the indictment are identical to Count One with the exception of the alleged obscene material, to wit, Count Two, 10 copies of magazines entitled "Boys and Their Male Lovers;" Count Three, 20 copies of magazines entitled "Domino;" Count Four, 5 copies of magazines entitled "Love Knot;" Count Five, 5 copies of magazines entitled "Wanton;" Count Six, 110 copies of magazines entitled "My Boys;" Count Seven, 5 copies of magazines entitled "In and Its Nice;" Count Eight, 6 copies of magazines entitled "The Girl-friends;" Count Nine, 10 copies of magazines entitled "Pussy Willow;" Count Ten, 10 copies of magazines entitled "Arcadia;" Count Eleven, 10 copies of magazines entitled "Teenage Jaybird;" and Count Twelve, 10 copies of magazines entitled "Cloud 9."
The offenses described in Counts One through Seven are alleged to have occurred April 24, 1970, and the offenses described in Counts Eight through Twelve are alleged to have occurred May 6, 1970.
Pre-trial motions challenging the sufficiency of the indictment and requesting a stay of proceedings were denied by the trial court and the Supreme Court. The Government and the Defendants executed and filed Waivers of a Jury Trial and entered into Stipulations of Fact, and the case proceeded to trial by the Court sitting without a jury. After the conclusion of the evidence, oral arguments were heard and the Court took the case under advisement, allowing counsel for the Government and the Defendants to file written briefs.
Although the Defendants entered a plea of not guilty to each of the twelve counts of the indictment, insisting that the Government meet its burden of proof in adducing evidence beyond a reasonable doubt to each and every element of the alleged offense, no serious contest was made of the fact that the material was transported in interstate commerce on or about the dates alleged in the indictment and that both of the Defendants, Michael G. Thevis and Peachtree News Company, Inc., had knowledge of the contents of the magazines and knowledge of the interstate shipment.
The Defendants contend that the publications contain primarily pictures of either males with males, or females with females, or males with females at the most engaged in simulated activity involving primarily psuedo foreplay. Therefore, their argument continues, said magazines cannot be considered obscene in the constitutional sense and are entitled to First Amendment protection absent the actual depiction of sexual acts where no imagination is required to see the act in progress, such as that which shows insertion or genital travel in the actual act of intercourse or sodomy, or actual acts of cunnilingus or felatio, in other words, "hard-core pornograhy;" Defendants further contend that if in fact, there is any redeeming social value in the materials, they may not be proscribed; and further, if the materials are disseminated to willing adults in an adults-only environment and are not disseminated to juveniles or pandered or foisted upon an individual wishing to avoid confrontation with them, the materials may not be proscribed.
The Government, on the other hand, contends that the publications in question contain either males with males, or females with females, or males with females depicting simulated acts of intercourse or other sexual acts in such a manner as to be held obscene under the basic test first pronounced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and later elaborated upon by A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966), where the Supreme Court stated the requirements to be as follows:
The issue for the Court to determine is whether or not the material in the magazines in question is obscene. In this regard, there is absolutely no possibility for doubt that the material in the twelve types of magazines depicts pornography in its gross, most vulgar and offensive form, but, for the Defendants to be found guilty of the offenses alleged in the indictment, the Court must find the magazines to be obscene in a constitutional sense, and therefore not entitled to First Amendment protection.
Our task has been made considerably easier by the Supreme Court's recent opinions in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971) and United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). In Reidel, the Court declared that the First Amendment is not violated by the application of Section 1461 of Title 18, U.S. C., which forbids the use of the mails to deliver obscene matter, to the distribution of obscene material to willing recipients who state that they are adults. Likewise, in Thirty-Seven Photographs, the Court held that the First Amendment is not violated by the application of Title 19, U.S.C., Section 1305(a), which authorizes the Government to seize at the port of entry into the United States obscene matter privately possessed by a person who intends it for commercial distribution.
In the years between Roth in 1957 and Reidel and Thirty-Seven Photographs in 1971, certain Supreme Court decisions seemed to narrow the permissible scope of regulation of allegedly obscene material. See Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Under these decisions and others, Carlos v. New York, 396 U.S. 119, 90 S.Ct. 395, 24 L.Ed.2d 303 (1969); Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 335 (1970); Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970); Walker v. Ohio, 398 U.S. 434, 90 S.Ct. 1884, 26 L.Ed.2d 385 (1970); Hoyt v. Minnesota, 399 U. S. 524, 90 S.Ct. 2241, 26 L.Ed.2d 782 (1970); Bloss v. Michigan, 402 U.S. 938 91 S.Ct. 1615, 29 L.Ed.2d 106 (1971),2 it would appear that a new doctrine of First Amendment protection had evolved, and it would not be accurate to state categorically that the First Amendment did not protect obscenity.
In Jacobellis, the Court reversed a conviction under a state statute for the exhibition of an obscene motion picture. The Court reiterated the standard that a work cannot be proscribed unless it is "utterly without redeeming social importance," and hence material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection.
In Ginzburg, defendant was convicted of violating the federal obscenity statute by mailing three publications that dealt exclusively with sex. Besides testimony as to the merit of the material, abundant evidence was introduced that each of the publications was originated or sold as stock in trade of the business of pandering, i. e., the purveying of publications openly advertised to appeal to the customers' erotic interest. The Supreme Court affirmed the conviction, holding that the defendant had deliberately represented the publications as erotically arousing and had commercially exploited them as erotica solely for the sake of prurient appeal. In other words, the gravamen of the offense was "pandering."
In Redrup, the Court handed down a decision in which it found specific books and magazines not "obscene in the constitutional sense" under the three criteria stated in Roth and Memoirs. The real significance of the opinion, however, is the Court's dictum that certain publications are not protected by the First Amendment. The Court went on to say that if objectionable material is "pandered," "obtrusively" advertised, or placed in an environment in which it is likely to fall into the hands of children, it can be constitutionally suppressed.
Subsequent to Redrup, the Supreme Court considered the issue of obscenity from a somewhat different viewpoint in Stanley v. Georgia. There, pornographic films were found in Stanley's home, and he was convicted under Georgia statutes for possessing obscene...
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Bryers v. State
...adults or children,' in order for it to be proscribed and constitutionally suppressed. . . .' (Emphasis added.) United States v. Thevis, 329 F.Supp. 265, 269 (M.D.Fla.1971). These threshold issues aside, we turn now to the primary question presented by this appeal: can a conviction for exhi......
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United States v. Thevis
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