State v. Rabe

Hunter, J.

(concurring in the result) — I concur with the result of the majority, but would go further and hold the film “Carmen Baby” to be obscene under the definitions of Roth v. United States, 354 U.S. 476 , 1 L. Ed. 2d 1498 , 77 S. *271 Ct. 1304 (1957). That an exhibition of the film, even to consenting adults, would be in violation of RCW 9.68.010.

We defined obscenity in Roth in the following terms: “[WJhether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U.S., at 489 . Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established 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.

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U.S. 413, 418 , 16 L. Ed. 2d 1 , 86 S. Ct. 975 (1966).

It appears that the third element of the definition has caused confusion in the application of this definition.

I find no such problem. The definition should be considered in its entirety. The third element should not be considered in isolation of the remainder of the definition. If the material, taken as a whole, appeals to the prurient interest in sex, and is patently offensive because it affronts contemporary community standards relating to the representation of sexual matters, then whether or not the material is utterly without redeeming social value, should be determined in the light of contemporary standards of the community.

Because there may be some in a community who disagree with the contemporary standards and, in their opinion, deem the material to have some redeeming social value, does not by itself remove that material from the definition of obscenity.

In the instant case the film “Carmen Baby” was exhibited to this court. It became indisputed evidence in the case. Therefore, this court is in as favorable a position as the trial court to make a valued judgment and independent judicial determination as to whether this film is utterly without redeeming social value.

*272 To detail the repulsive, erotic, pornographic scenes that dominate the entire theme of this film is unnecessary to this opinion. The majority unhesitatingly state:

We necessarily viewed the film and found it personally distasteful, offensive and devoid of social, philosophical or artistic merit.

(Italics mine.)

Why then should the opinion of some witnesses in the record modify the opinion of the members of this court. To do so unqualifiedly would be to allow their usurpation of a judicial function.

This court must make the final determination as to whether the film “Carmen Baby,” the undisputed evidence in this case, comes within the Roth definition and is obscene. Unquestionably.the dominant theme of the film appeals to the prurient interest in sex. We can take judicial notice that it does affront contemporary community standards. Applying these .standards, it is utterly without any redeeming social value.

This court therefore should, without equivocation, hold that the film is obscene, and any exhibition thereof, even to consenting adults, is in violation of the statute, RCW 9.68.010, supra.

Finley, J. (concurring in the result) — I have some lingering reservations as to the constitutionality of the procedure employed in seizing the questioned film — i.e., the lack of a prior adversary hearing on the question of obscenity. I nevertheless concur in the result reached by the majority on the ground that exhibition of the film “Carmen Baby” under the specific facts of this case — i.e., in a location unre-strictedly frequented by juveniles — does not fall within the constitutional protection of the first amendment to the United States Constitution. Furthermore, in my opinion, the facts surrounding exhibition of the film “Carmen Baby” in the case before us support a finding of pandering on the part of the appellant as to those minors who actually viewed the film. 2 It is obvious from the record that the *273 appellant made no attempt to restrict viewing of the film by juveniles immediately outside the chain link fence. Such inaction was potentially an economic benefit to appellant in serving to attract juveniles to become paying customers and with a somewhat logically predictable result the juveniles as “free” customers would, by word-of-mouth, attract additional paying customers.

It appears to me that, perhaps, the majority assumes too much in applying, or, possibly, in attempting to extend the application of, the contextual or variable approach developed in Redrup v. New York, 386 U.S. 767 , 18 L. Ed. 2d 515 , 87 S. Ct. 1414 (1967), and Close v. Lederle, 424 F.2d 988 (1st Cir. 1970). Namely, the facts of the instant case do not, in my opinion, support the finding of an assault upon individual privacy “in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it” such as described in Redrup and Close .

While I can agree with, and would support, application of the “contextual” approach in an appropriate case, as I read the record before us, it is silent or lacking as to any complaints actually made by motorists or residents of the area, and thus there seems to be no indication that, in fact, the individual privacy of any homeowner or passing motorist was assaulted. Decisions of the federal courts in the area here involved seem to me to indicate that the First Amendment rights cannot be circumscribed absent clear proof of an actual assault upon the rights of a nonconsenting individual.

Finally, in terms of the foregoing, it appears to me the rationale of Redrup and Close may be somewhat misapplied in the following passage from the majority opinion:

The right of the homeowner to be free from the intrusion *274 of unsolicited offensive displays is obviously paramount to the outdoor theater manager’s absolute discretion to choose what films he will exhibit to a willing and unwilling audience.

It is my feeling this statement would be more appropriate if there had been complaints or were this an action for nuisance brought by offended homeowners. This particular language in this case does not, in my opinion, sustain censure of the film absent proof of actual assault upon the privacy of a specific individual.

In any event, for the reasons stated, I concur in the result reached by the majority.

Neill, J., concurs with Finley, J.

Pandering may be found to exist, as I understand the relevant federal cases, when the questioned material is “created or exploited *273 entirely on the basis of its appeal to prurient interests . . .” Ginzburg v. United States, 383 U.S. 463, 474 , 16 L. Ed. 2d 31 , 86 S. Ct. 942 (1966). Where the relevant evidence supports a finding that a solicitor’s or exhibitor’s actions amount to pandering, “such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation.” (Italics mine.) Ginzburg, 383 U.S. at 476 .