# State v. Cox

> Court of Appeals of Washington · November 30, 1970 · 3 Wash. App. 700

URL: https://www.frixlaw.com/law-library/cases/9547946

## Case

- **Full name:** The State of Washington, Respondent, v. Jesse Allen Cox, Appellant
- **Court:** Court of Appeals of Washington
- **Decided:** November 30, 1970
- **Citations:** 3 Wash. App. 700; 477 P.2d 198; 1970 Wash. App. LEXIS 1020
- **Precedential status:** Published
- **Opinion:** Concurrence by Farris
- **Judges:** James, Farris
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Farris, J.
(concurring)—Mr. Cox, a retail clerk in a magazine, book and film store was found guilty on 12 counts of possessing obscene materials with the intention of selling them. He appeals.
The questions raised by this appeal were resolved *711 in the per curiam decision of the United States Supreme Court in Redrup v. New York, 386 U.S. 767 , 18 L. Ed. 2d 515 , 87 S. Ct. 1414 (1967), and subsequent cases, 7 which reviewed substantially indentical material and concluded: (1) there is no claim that the applicable statute reflects a specific and limited state concern for juveniles; (2) there is no suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it; (3) there is no evidence of “pandering” by purveying textual or graphic matter openly advertised to appeal to the erotic interest of customers; (4) the publications are not hardcore pornography and (5) they are not obscene under the prior decisions of the United States Supreme Court which require for a determination of obscenity that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
Reversed.
Swanson, J. (concurring)—I concur in the disposition solely because decisions of the United States Supreme Court virtually dictate a reversal of Cox’s decision. This is so because the high court has determined magazines and films indistinguishable from those possessed and exhibited for sale by defendant Cox to be not legally obscene and thus entitled to First Amendment protection. I am, therefore, compelled to yield to a conclusion not in keeping with my own view of the evidence. I would, if permitted, uphold *712 the trial court’s factual determination that Cox’s materials are obscene within the meaning of RCW 9.68.010 8 and the United States Supreme Court’s definition of obscenity.
Roth v. United States, 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 S. Ct. 1304 (1957), determined that obscenity is not within the area of constitutionally protected speech or press. But what is “legally obscene” or “obscene in the constitutional sense” is determined by the United States Supreme Court’s definition of such terms. To the extent that it has defined them, its definition is controlling upon us. The trial court, in the case at bar, applied the approved test of obscenity given in Roth , restated in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413 , 16 L. Ed. 2d 1 , 86 S. Ct. 975 (1966), and incorporated into Redrup v. New York, 386 U.S. 767 , 18 L. Ed. 2d 515 , 87 S. Ct. 1414 (1967), which requires a coalescence of three elements: (1) the dominant theme when taken as a whole appeals to a prurient interest in sex, (2) the material is. patently offensive because it affronts contemporary community standards relating to the description or representation of sexual materials, and (3) the material is utterly without redeeming social value.
Pursuant to the mandate of Jacobellis v. Ohio, 378 U.S. 184 , 12 L. Ed. 2d 793 , 84 S. Ct. 1676 (1964), I have independently examined Cox’s magazines and films in a review of the trial court’s fact finding. I unhesitatingly brand Cox’s materials obscene, not only in the ordinary sense of the word, but also when tested in light of the Roth definition of obscenity. If Cox’s materials are not obscene, the word has lost all meaning, and “obscene in the constitutional sense” has succumbed to semantic confusion.
*713 Notwithstanding such an independent determination of the correctness of the trial court’s findings based on an application of the Supreme Court’s definition of obscenity, which is obscure at best, the decisive factor is the comparison of the material involved here with those already reviewed and passed upon by our nation’s highest court. In Central Magazines Sales, Ltd. v. United States, 389 U.S. 50 , 19 L. Ed. 2d 49 , 88 S. Ct. 235 , reversing sub nom. United States v. Claimant of 392 Copies of a Magazine Entitled “Exclusive,” 373 F.2d 633 (4th Cir. 1967), involving a federal statute, and Bloss v. Dykema, 398 U.S. 278 , 26 L. Ed. 2d 230 , 90 S. Ct. 1727 (1970), reversing Dykema v. Bloss, 17 Mich. App. 318 , 169 N.W.2d 367 (1969) , and Hoyt v. Minnesota, 399 U.S. 524 , 26 L. Ed. 2d 782 , 90 S. Ct. 2241 , reversing State v. Hoyt, 286 Minn. 92 , 174 N.W.2d 700 (1970), involving state statutes, the Supreme Court reviewed magazines and films identical to those displayed by Cox, focusing on female genitals, and determined such materials to be not obscene in the constitutional sense and thus within the ambit of First Amendment protection. In so doing, the United States Supreme Court found no error in the legal principles involved or in the use of its definition of what is “constitutionally obscene,” but, rather, made its own value judgment that the materials involved were not obscene. In the many cases 9 following this procedure, the United States Supreme Court disregarded the findings of other courts, substituted its own subjective value judgment of the materials involved, and assumed the role of a supreme board of censorship for the 50 states. 10 But the United States Supreme Court has spo *714 ken. The message is clear. The conviction must be reversed.
I am, however, unwilling to say, as the majority has in the case at bar, that
offensive, worthless, prurient material is not to be civilly suppressed or to be the essential element of a criminal conviction unless the material is clearly “hard-core” pornography or unless the accused possessor has conducted himself in a clearly proscribed manner.
(Footnote omitted.) In Redrup , the Supreme Court included five different tests for obscenity. Three of the tests concerned the manner in which the material is distributed. The other two were concerned with what kinds of material are obscene in the constitutional sense. One of these latter tests was whether the material was hard-core 11 pornography. The other was the test given in Roth . As incorporated into Redrup , to meet the Roth test of obscenity, the material must be a coalescence of the three elements applied by the trial court in the case at bar. Because the Supreme Court made a distinction between hard-core pornography and the Roth test, there must be prurient materials which are constitutionally obscene and yet not hard-core.
The majority in the case at bar uses Stanley v. Georgia, 394 U.S. 557 , 22 L. Ed. 2d 542 , 89 S. Ct. 1243 (1969), to buttress its view of what cannot be declared obscene. The United States Supreme Court, in Stanley , however, was concerned with the prohibition of the possession of obscene materials, not their distribution. Furthermore, the court distinctly said, “Roth and the cases following that decision *715 are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; . . Stanley, 394 U.S. at 568 .
Yet, even though the Roth standard exists, the Supreme Court as mentioned, has summarily overruled lower-court attempts to apply the Roth standard. Thus, it remains unknown what materials the United States Supreme Court feels are constitutionally obscene under the Roth standard. But whatever it is, it is not protected.
Petition for rehearing denied January 27, 1971.
Review denied by Supreme Court March 2, 1971.
Potomac News Co. v. United States, 389 U.S. 47 , 19 L. Ed. 2d 46 , 88 S. Ct. 233 (1967); Central Magazines Sales, Ltd. v. United States, 389 U.S. 50 , 19 L. Ed. 2d 49 , 88 S. Ct. 235 (1967); Chance v. California, 389 U.S. 89 , 19 L. Ed. 256 , 88 S. Ct. 253 (1967); Carlos v. New York, 396 U.S. 119 , 24 L. Ed. 2d 303 , 90 S. Ct. 395 (1969); Cain v. Kentucky, 397 U.S. 319 , 25 L. Ed. 2d 334 , 90 S. Ct. 1110 (1970); Hoyt v. Minnesota, 399 U.S. 524 , 26 L. Ed. 2d 782 , 90 S. Ct. 2241 (1970).
RCW 9.68.010, the statute under which Cox was arrested and convicted, is just one of several statutes that could be used to combat obscenity. RCW 7.42.010-.900 provides for injunctions against the sale or distribution of obscene prints and articles. RCW 7.48.120, dealing with nuisances, could be read to include smut shops in certain neighborhoods. Note also that a new statute, RCW 9.68.060, was enacted by the 1969 legislature in extraordinary session, which is specifically aimed at protecting juveniles from obscene materials.
For a collection of cases reversed by the United States Supreme Court on the authority of Redrup , see Hoyt, 286 Minn, at 94.
In Walker v. Ohio, 398 U.S. 434 , 26 L. Ed. 2d 385 , 90 S. Ct. 1884 (1970) , Mr. Chief Justice Burger, in dissenting, observed that the trial court tried to apply the standards articulated by the supreme Court in holding that the materials in question are obscene, and said:
The Ohio appellate courts declined to disturb that judgment. Yet today the Court reverses citing only Redrup .
I dissent from such a summary disposition, not only for the reasons expressed in my dissenting opinion in Cain v. Kentucky, 397 *714 U. S. 319 [ 90 S. Ct. 1110 , 25 L. Ed. 2d 335 ] (1970), but also because I find no justification, constitutional or otherwise, for this Court’s assuming the role of a supreme and unreviewable board of censorship for the 50 States subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal. That is not one of the purposes for which this Court was established.
See Mr. Justice Blackmun’s dissenting opinion in Hoyt and Mr. Justice Harlan’s dissenting opinion in Bloss.
See Mr. Justice Stewart’s definition of “hard-core” pornography in Ginzburg v. United States, 383 U.S. 463 , 499 n.3, 16 L. Ed. 2d 31 , 86 S. Ct. 942 (1966).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9547946. Public record. Not legal advice.