State v. J-R Distributors, Inc.

Finley, J.

(concurring) — Obscenity is a complex and difficult socio-legal problem not only for the legislative and executive branches, but also for the judicial branch of government. This is so largely because views, ideas, and notions concerning obscenity are not changeless or absolute. Such views, ideas, and notions may well differ significantly in the eyes of the beholder, as well as in terms of such variant factors as time, place, and circumstance, embracing among other things the context, format, and manner of presentation. Obscenity cannot be considered in the abstract or in a purely academic or philosophical reference when presented in a case before an appellate court. Attention must be given to freedom of the press and freedom of speech. In other words, social or legal restraint, restriction, and regulation of any alleged obscenity under state police power is subject to and must be tested against the constitutional rights of free press and free speech of those affected by a complaint or charge of obscenity. Judicial evaluation and decision is not only necessary, it is a proper and traditional function of the judicial branch of government. In this context, the majority opinion by Chief Justice Burger in Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 60 n.10, 37 L. Ed. 2d 446 , 93 S. Ct. 2628 (1973) observed the following:

“In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments.” Jacobellis v. Ohio, supra [ 378 U. S. 184 (1964)] at 199 (Warren, C. J., dissenting).

*647 The United States Supreme Court attempted to evolve an understandable, workable formula relative to obscenity and First Amendment freedoms of speech and press in Roth v. United States, 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 S. Ct. 1304 (1957) and Memoirs v. Massachusetts, 383 U.S. 413 , 16 L. Ed. 2d 1 , 86 S. Ct. 975 (1966). The efforts in Roth and Memoirs proved to be rather disappointing in terms of clarity and amenability to application by state legislative, executive, and judicial branches of government. In this regard, Chief Justice Burger, writing for the majority in Miller v. California, 413 U.S. 15 , 37 L. Ed. 2d 419 , 93 S. Ct. 2607 (1973), commented as follows:

It is certainly true that the absence, since Roth , of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment.

Despite this assurance of the majority in Miller regarding “concrete guidelines”, the opinion written in the Miller case is somewhat confusing and disappointing at first blush. It must be read several times and subjected to close analysis and examination. Given this kind of careful study and evaluation, an understandable and workable formula relative to obscenity, in my best judgment, becomes clearly discernible and amenable to application by the respective branches of our state government. This new obscenity formula is enunciated in Miller in the following manner:

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, supra, [ 408 U. S. 229 (1972)], at 230, quoting Roth v. United States, supra, at 489; (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 *648 adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, 383 U. S., at 419 ; that concept has never commanded the adherence of more than three Justices at one time. . . . 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.

(Footnote omitted.) Miller v. California, supra at 24 . Just prior to the court’s statement in Miller of the above test, the formula is suggested in somewhat different language. This variant language and phrasing engenders some confusion. Likewise, some of the discussion in Miller elaborating on the formula is. a bit on the confusing side, but once again, a careful analysis of the majority opinion elicits a formula which I think is intelligible and susceptible to administration. Conscientious review of the dissenting opinions in Miller by Justices Douglas and Brennan sheds further light upon the nature and scope of the test announced in the majority opinion. Similarly, close scrutiny of the majority and dissenting opinions in Paris Adult Theatre I v. Slaton, supra, United States v. 12 200-Ft. Reels, 413 U.S. 123 , 37 L. Ed. 2d 500 , 93 S. Ct. 2665 (1973), Kaplan v. California, 413 U.S. 115 , 37 L. Ed. 2d 492 , 93 S. Ct. 2680 (1973), and United States v. Orito, 413 U.S. 139 , 37 L. Ed. 2d 513 , 93 S. Ct. 2674 (1973), further illuminates the elements of the Miller formula, as well as its mode of application.

Considered and evaluated as indicated above, the Miller obscenity formula seems to me to have three main facets which are elucidated by the following questions: (1) Does the allegedly obscene work, material, pamphlet, book, film, or related medium, taken as a whole, appeal to the prurient interest in sex (does it produce an itching or a restless craving for the lewd, licentious, and lascivious in sexual *649 matters), 5 as viewed by the average person applying contemporary state-wide community standards; (2) Does the work depict or describe sexual conduct in a patently offensive way, and is the conduct thus involved specifically defined by applicable state law, i.e., does the statute or authoritative judicial decision give reasonable notice of what is proscribed; (3) Does the work have serious literary, artistic, political, or scientific value. The Miller opinion clearly indicates that the Roth-Memoirs formula has undergone significant modification. The dubious and cumbersome phrase “utterly without redeeming social value” has been eliminated.

The majority opinion in Miller refers to contemporary community standards a number of times. These references pertain to a discussion of so-called national standards on obscenity in contrast to state-wide standards. Nowhere in Miller, Paris Adult Theatre, 12 200-Ft. Reels, Kaplan, or Orito is there any significant or serious reference to local standards such as might be defined in terms of geographical or other county, city, and township dimensions or perimeters. In view of this and the fact that the formula refers to state legislative statutory enactments, I am convinced that the phrase “contemporary community standards” as used in Miller and elsewhere in the companion cases simply means state-wide standards as to obscenity — nothing more, nothing less.

The requirement of the Miller formula that allegedly obscene sexual conduct must be specifically defined by state statute or authoritative state law (judicial decision) is clarified by reference to the majority opinion in United States v. 12 200-Ft. Reels, supra, and by an examination of the language and provisions of 19 U.S.C. § 1305 (a), the federal *650 statute reviewed in that case, which proscribed the following conduct:

“All persons are prohibited from importing into the 'United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representa-tation, figure, or image on' or of paper or other material, or any cast, instrument, or other article which is obscene or immoral . . .

United States v. 12 200-Ft. Reels, supra at 124. Our own Washington statute is not dissimilar:

Every person who—

(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion’ picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or

(2) Having knowledge of the contents’ thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;

Shall be guilty of a gross misdemeanor.

RCW 9.68.010. The Supreme Court’s approval of the language of 19 U.S.C. § 1305 (a) in 12 200-Ft. Reels establishes this federal statute as an example of sufficient regulatory specificity. Owing to the marked similarity in substance between that particular statute and RCW 9.68.010, the court has, in my judgment, implicity approved the Washington obscenity statute involved in the nine consolidated cases before this court. In this connection, it should be noted that the majority opinion by Stafford, J., authoritatively construes the term “obscenity” as used in RCW 9.68.010 to embrace hard-core pornography. Thus, I have difficulty understanding any apprehensions and criticism of our application of the Miller standard to the instant cases or our related conclusion that the Washington statute is sufficiently precise.

*651 It is a necessary and traditional duty of appellate courts to make evaluations and determinations as to obscenity. This function is not an idle, academic one. It involves actual judicial decision making in actually litigated cases where free press and free speech constitutional claims, asserted by actual people, are involved. The function is a line-drawing one and is an.essential part of the role of the judiciary in our system of government. Under the Miller formula, appellate courts should experience little difficulty in exercising this duty of identifying and distinguishing hard-core pornography. I daresay many people have been engaged for a considerable time in the apparently very broad scale and flourishing business of producing, distributing and selling pornography. In order to maintain the patronage of their paying customers interested in this type of material, they must continually distinguish and identify that which will sell as the hard-core variety. I doubt that appellate courts are significantly more naive or less discriminating than the numerous people engaged in merchandising pornography. The majority of the United States Supreme Court had no difficulty and apparently no reluctance in identifying the material involved in Miller and the four companion cases decided at the same time by the court. The majority opinion in Miller clearly states that the items themselves constituted the best evidence for evaluation by the court as to whether they were hard-core pornography —not entitled to First and Fourteenth Amendment protection. It was upon this basis that the court was capable of making the decision it did, focusing upon “hard-core” pornography and its commercialization as defined in the Miller formula. This same theme is present in the cases immediately before this court. Having examined and evaluated the items involved in these nine consolidated cases, I agree with the modus operandi of the United States Supreme Court in Miller . I find no difficulty in identifying the items (graphically described in the majority opinion by Stafford, J.) as hard-core pornography — not entitled to the protection of the First and Fourteenth Amendments either under *652 the Roth-Memoirs test or now under the test formulated by the court in Miller .

I cannot share Justice Utter’s concern that our own court may be called upon to function as a censorship board. First, I think the characterization is an extreme one. Second, it is not apt because the determination of what is entitled to First and Fourteenth Amendment protection in the area of obscenity has become well-recognized as a proper and necessary function of the judiciary, certainly as long ago as the decision of the United States Supreme Court in Roth . On this point, Chief Justice Burger stated very clearly and most positively in Miller that First Amendment values “are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims,” observing that the duty of the judiciary “ ‘admits of no “substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.” ’ ” Miller v. California, supra at 29, 30.

It is one thing for Justices Douglas, Brennan, Stewart and Marshall to disagree with the majority and to dissent to the court’s holding in Miller ; state appellate judges cannot indulge in such plenary intellectual luxury. Regardless ■of our personal opinions as to the wisdom or merits of Miller , the decisions of the United States Supreme Court are the law of the land insofar as applicable to comparable factual and legal issues before the Washington Supreme Court. I see no way of distinguishing the factual and legal issues as treated in Miller from the closely comparable ones involved in the nine consolidated cases now before us. Any discussion of purely personal preference or matters of individual philosophy must be regarded as not controlling and actually as surplusage of an academic or pedantic variety if we are to subscribe to the rule of law which seems so explicit upon careful examination and evaluation of the Miller decision.

It should be noted that the examples of obscenity in Miller and the related cases decided by a majority of the *653 members of the United States Supreme Court, as well as the examples of “hard-core” pornography involved in the nine consolidated cases in this appeal now before the Supreme Court of Washington should provide information, examples, and guidelines for enforcement officials charged with the duty of enforcing state law concerning obscenity. The examples should indicate what is and what is not protected by the freedom of press and speech provisions of the first and fourteenth amendments to the United States Constitution. This suggests a process of comparison to the items and material considered in these cases. Problems of interpretation are somewhat inherent to the area of obscenity; and it may be expected that from time to time additional litigated cases may arise. In my opinion, it would be very difficult to predict whether such cases will be numerous or relatively few in number. Of course, as they do arise the formula established in Miller will have to be applied on a case-by-case basis. In any event, before terminating this concurring opinion and at the risk of some repetition, it seems to me worth noting and emphasizing that close comparability to the examples of obscenity not protected by the First and Fourteenth Amendments, which are involved in the nine consolidated cases decided today, should be the standard or guideline for anyone interested and concerned, including Washington State law enforcement officials.

For the foregoing reasons, and on the basis indicated — as well as for the reasons stated in the majority opinion by Justice Stafford — I have signed and I concur in that opinion.

Hamilton, Stafford, and Wright, JJ., concur with Finley, J.

The parenthetical language employed merely restates an authoritative definition of the term “prurient”:

la: marked by restless craving: itching with curiosity . . . b: having or easily susceptible to lascivious thoughts or desires . . . c: tending to excite lasciviousness . . .

Webster’s Third New International Dictionary 1829 (1971).