Ward v. Illinois

• Decision Date: 09 June 1977
• Docket Number: No. 76-415,76-415
• Parties: Wesley WARD, Appellant, v. State of ILLINOIS
• Court: U.S. Supreme Court

431 U.S. 767

97 S.Ct. 2085

52 L.Ed.2d 738

Wesley WARD, Appellant,

v State of ILLINOIS.

No. 76-415.

Argued April 27, 1977.

Decided June 9, 1977.

Syllabus

Prior to the decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, appellant was convicted of selling obscene sado-masochistic materials in violation of the Illinois obscenity statute forbidding the sale of obscene matter and providing that "(a) thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." The conviction was affirmed after Miller, the Illinois Supreme Court rejecting appellant's challenge to the constitutionality of the statute for failure to conform to Miller standards, as well as his claim that the publications in question were not obscene. Held :

1. The Illinois statute is not unconstitutionally vague as failing to give appellant notice that materials dealing with the kind of sexual conduct involved here could not be legally sold in the State, where (whether or not the State has complied with Miller's requirement that the sexual conduct that may not be depicted must be specifically defined by applicable state law as written or authoritatively construed) appellant had ample guidance from a previous decision of the Illinois Supreme Court making it clear that his conduct did not conform to Illinois law. Pp. 771-773.

2. Sado-masochistic materials are the kind of materials that may be proscribed by state law, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 even though they were not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the aspect of its obscenity definition dealing with patently offensive depictions of specifically defined sexual conduct. P. 773.

3. The materials in question were properly found by the courts below to be obscene under the Illinois statute, which conforms to the Miller standards, except that it retains the stricter "redeeming social value" obscenity criterion announced in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. P. 773.

4. The Illinois statute is not unconstitutionally overbroad for failure to state specifically the kinds of sexual conduct the description or representation of which the State intends to proscribe, where it appears that in prior decisions the Illinois Supreme Court, although not expressly describing the kinds of sexual conduct intended to be referred to under the Miller guideline requiring inquiry "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law," expressly incorporated such guideline as part of the law and thereby intended as well to adopt the Miller explanatory examples, which gave substantive meaning to such guideline by indicating the kinds of materials within its reach. Pp. 773-776.

63 Ill.2d 437, 349 N.E.2d 47, affirmed.

J. Steven Beckett, Urbana, Ill., for appellant.

Melbourne A. Noel, Jr., Oak Park, Ill., for appellee.

Mr. Justice WHITE delivered the opinion of the Court.

The principal issue in this case is the validity of the Illinois obscenity statute, considered in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). There we reaffirmed numerous prior decisions declaring that "obscene material is unprotected by the First Amendment", id., at 23, 93 S.Ct. at 2614; but acknowledging "the inherent dangers of undertaking to regulate any form of expression", ibid., we recognized that official regulation must be limited to "works which depict or describe sexual conduct" and that such conduct "must be specifically defined by the applicable state law, as written or authoritatively construed." Id., at 24, 93 S.Ct., at 2615. Basic guidelines for the trier of fact, along with more specific suggestions, were then offered:

"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, Kois v. Wisconsin (,408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312 (1972)), quoting Roth v. United States, (354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957)); (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, 408 U.S., at 232, 92 S.Ct., at 2247; Memoirs v. Massachusetts, supra, 383 U.S., at 459-460, 86 S.Ct., at 998 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. 184, at 204, 84 S.Ct. 1676, at 1686 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686 (1964); Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct. 1315-1316 (Harlan, J., concurring and dissenting).

"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra :

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id., at 24-25, 93 S.Ct., at 2615. (Footnotes omitted.)

Illinois Rev.Stat., c. 38, § 11-20(a)(1) (1975), forbids the sale of obscene matter. Section 11-20(b) defines "obscene" as follows:

"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs." ¹

In October 1971 appellant Ward was charged in the State of Illinois with having sold two obscene publications in violation of § 11-20(a)(1). A jury was waived. At the bench trial the State's evidence consisted solely of the two publications "Bizarre World" and "Illustrated Case Histories, a Study of Sado-Masochism" and the testimony of the police officer who purchased them in Ward's store. Ward was found guilty, and in April 1972, he was sentenced to one day in jail and fined $200. His conviction was affirmed in the state appellate courts after this Court's decision in Miller. The Illinois Supreme Court expressly rejected his challenge to the constitutionality of the Illinois obscenity statute for failure to conform to the standards of Miller, as well as a claim that the two publications were not obscene. 63 Ill.2d 437, 349 N.E.2d 47 (1976). Ward appealed, and we noted probable jurisdiction, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 (1977), to resolve a conflict with a decision of a three-judge District Court for the Northern District of Illinois. Eagle Books, Inc. v. Reinhard, 418 F.Supp. 345 (1976), appeal docketed, No. 76-366. We affirm.

(1) As we read the questions presented by Ward,² they subsume four issues. First, is the claim that Illinois has failed to comply with Miller's requirement that the sexual conduct that may not be depicted in a patently offensive way must be "specifically defined by the applicable state law, as written or authoritatively construed", see supra, at 768, and that absent such compliance the Illinois law is unconstitutionally vague because it failed to give him notice that materials dealing with the kind of sexual conduct involved here could not legally be sold in the State. This claim is wholly without merit. As we shall see below, the State has complied with Miller, but even if this were not the case, appellant had ample guidance from the Illinois Supreme Court that his conduct did not conform to the Illinois law. Materials such as these, which by title or content may fairly be described as sado-masochistic, had been expressly held to violate the Illinois statute long before Miller and prior to the sales for which Ward was prosecuted.

In People v. Sikora, 32 Ill.2d 260, 267-268, 204 N.E.2d 768, 772-773 (1965), there are detailed recitations of the kind of sexual conduct depicted in the materials found to be obscene under the Illinois statute. These recitations included "sadism and masochism." ³ See also City of Blue Island v. DeVilbiss, 41 Ill.2d 135, 142, 242 N.E.2d 761, 765 (1968); ⁴ cf. City of Chicago v. Geraci, 46 Ill.2d 576, 582-583, 264 N.E.2d 153, 157 (1970).⁵ The construction of the statute in Sikora gives detailed meaning to the Illinois law, is binding on us, and makes plain that § 11-20 reaches the kind of sexual materials which we now have before us. If Ward cannot be convicted for selling these materials, it is for other reasons and not because the Illinois statute is vague and gave him no notice that the statute purports to ban the kind of materials he sold. The statute is not vague as applied to Ward's...