State v. J-R Distributors, Inc.

Rosellini, J.

(dissenting) — I agree with Utter, J., but I think that something more needs to be said about the impropriety of a decision which superimposes upon a statute specifications and descriptions which cannot be found *654 in the words of the statute.'We have recently reaffirmed the rule that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essentials of due process. State v. Reader’s Digest Ass’n, 81 Wn.2d 259 , 501 P.2d 290 (1972).

The one word used by the legislature to describe the material, dissemination of which is proscribed, is the word “obscene.” This is a word of extremely broad meaning, and the majority does not attempt to define its scope but merely lists certain things which they are certain fall within its ambit. To perceive that its list is hardly comprehensive, it is only necessary to turn to the dictionary currently in use at the court, Webster’s Third New International Dictionary (1968). Here is what the compilers of that volume have to say about the definition of the word “obscene.”

la: disgusting to the senses usu. because of some filthy, grotesque, or unnatural quality ([obscene] fungi clothed the wall of that dank cavern) (dressed in [obscene] rags) b : grossly repugnant to the generally accepted notions of what is appropriate : Shocking (death under the stars is [obscene] somehow — Infantry Jour.) 2 : offensive or revolting as countering or violating some ideal or principle : as a : abhorrent to morality or virtue : stressing or reveling in the lewd or lustful; specif : inciting or designed to incite to lust, depravity, indecency (the dance often becomes flagrantly [obscene] and definitely provocative— Margaret Mead) (a sly and [obscene] humor, the whispering and important lecheries of an old worn-o-ut rake— Thomas Wolfe) b: marked by violation of accepted language inhibitions and by the use of words regarded as taboo in polite usage ([obscene] chantey — Sinclair Lewis) c : repulsive by reason of malignance, hypocrisy, cynicism, irresponsibility, crass disregard of moral or ethical principles (the [obscene] little counter demonstration lewdly exulting in the forthcoming deaths — T. R. Ybarra) (the debate . . . was almost [obscene] in its irresponsi bility — New Republic) syn see Coarse

*655 If we turn to the given synonym, “coarse,” we find the following further elaboration:

3 a : crude or unrefined in taste, manners, or sensibilities : without cultivation of taste, politeness or civility of manner, or delicacy of feeling (many of the muckraking novels . . . were simple parables of the [coarse] businessman and the sensitive intellectual — Bernard De Voto) b : crude and indelicate of language or idea esp. with violation of social taboos on language : Obscene, Profane 4 a dial, of the weather : Rough, Stormy b dial Brit, of persons or circumstances : Brutal, Harsh 5 : harsh, raucous, or rough in tone : not melodious or mellow (the [coarse] jangling, of ordinary bells — G. B. Shaw) — used also of certain sounds heard in auscultation in pathological states of the chest ([coarse] rales)

syn Vulgar, Gross, Obscene, Ribald : Coarse suggests unrefined crudeness, indelicacy, or robust roughness (he was forever making eyes at me — a coarse, puffy-faced, red-moustached young man, with his hair plastered down on each side of his forehead. I thought he was perfectly hateful ... A. Conan Doyle) (the landlady who had tyrannized over her when ill-humoured and unpaid, or when pleased had treated her with a coarse familiarity scarcely less odious — W. M. Thackeray) In this sense, Vulgar, a stronger term, describes what offends good taste or decency and may suggest boorishness (his passion for physical luxury nakedly revealed itself as simply the vulgar longing of the idle rich for conspicuous waste— Granville Hicks) (her father is a . . . vulgar person, mean in his ideals and obtuse in his manners — John Er-skine 1951) (it was, in fact, the mouth that gave his face its sensual, sly, and ugly look, for a loose and vulgar smile seemed constantly to hover about its thick coarse edges— Thomas Wolfe) Gross stresses crude animal inclinations and lack of refinement (merely gross, a scatological rather than a pornographic impropriety — Aldous Huxley) (Clif Clawson, at forty, was gross. His face was sweaty, and puffy with pale flesh; his voice was raw; he fancied checked Norfolk jackets, tight across his swollen shoulders and his beefy hips — Sinclair Lewis) (a spirituelle am-oureuse, she is repelled by the gross or the voluptuary— S. 1ST. Behrman)

*656 Obscene is the strongest of this group in stressing impropriety, indecency, or nastiness (it was, of course, easy to pick out a line here and there . . . which was frank, to indecency, yet certainly not' obscene — H. S. Oanby) (his innate belief that human flesh is in some way obscene. In the old days artists . . . had painted decently and had draped their figures — Ellen Glasgow) (there are depths beneath depths in what happened last night — obscure fetid chambers of the human soul. Black hatreds, unnatural desires, hideous impulses, obscene ambitions are at the bottom of it — W. H. Wright) Ribald suggests rough merriment or crude humor at the irreverent, scurrilous, or vulgar (they had their backs to him, shaking with the loose laughter which punctuates a ribald description— Mary Austin) (a ribald folksong about fleas in straw — J. L. Lowes)

It should be obvious that what is one man’s obscenity may be another’s art. “Beauty in things exists in the mind which contemplates them.” D. Hume, Essays, Moral & Political at 22 (1742).

The Supreme Court has recognized the vagueness of the word “obscene” and its subjective quality. The highest court of the land has nevertheless decreed that certain publications or depictions, having to do with sex, which are offensive to the “community” (whatever that may be) can be punished, but it has set forth three requirements which must be met before a conviction can be sustained. These all contemplate that the initial decision as to whether a given publication or depiction is punishable shall be made by the trier of the fact, and that trier of the fact must have before it a legislative act which specifically defines the sexual conduct depiction of which is punishable.

It also must be told that it should apply the community standard to determine whether the particular description or depiction of sexual conduct specifically defined by the legislature appeals to the prurient interest and it must further decide whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The triers of the facts in the cases before us could not have followed the *657 procedure designated by the United States Supreme Court, for the simple reason that they had before them no statute which meets the requirement of “specific definition of sexual conduct” which was laid down by the Supreme Court in Miller v. California, 413 U.S. 15 , 37 L. Ed. 2d 419 , 93 S. Ct. 2607 (1973).

The majority has taken upon itself the responsibility of performing the functions, not only of the legislature, but of the jury and the trial judge as well.

Even without the recent decision of the United States Supreme Court, I am convinced that RCW 9.68.010 should be held invalid, for it does not meet the preexisting constitutional requirement that it should describe the act forbidden in language sufficiently definite to enable a person of ordinary understanding to know what he is forbidden to do. State v. Reader’s Digest Ass’n, supra.

Under the guise of “authoritative construction,” the majority of the court has added to and revised a legislative enactment. It does not pretend that a person charged in the words of the statute would be adequately apprised of his alleged offense, as is ordinarily the case where a criminal statute is sufficiently definite to render it constitutional. It is obvious that a proper charge will have to include a listing of those depictions or descriptions which the court has today found to be offensive and has assumed that the legislature would, if given the chance, have concurred in.

Even if it is assumed that the majority’s list of horrors— though perhaps it would not be considered exhaustive in the judgment of a connoisseur of erotica — includes only postures and acts which the legislature would be likely to find sufficiently offensive to include them in its specification, it is still not the court’s duty or prerogative to compile such a list.

I seriously doubt that the morals of the community would be irretrievably shattered if the court should exercise the restraint which it properly imposes upon itself where unconstitutional statutes are brought before it and *658 should leave to the legislature the task of amending the statute.

I would reverse the convictions.