# Hudson v. United States

> District of Columbia Court of Appeals · November 14, 1967 · 234 A.2d 903

URL: https://www.frixlaw.com/law-library/cases/9730115

## Case

- **Full name:** Lillian M. HUDSON, Esther Sesman, Mariaelena Clark and Abe Attenson, Appellants, v. UNITED STATES, Appellee; Abe ATTENSON, Hanna Bernstein and Mary A. Tobin, Appellants, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 14, 1967
- **Citations:** 234 A.2d 903; 1967 D.C. App. LEXIS 202
- **Precedential status:** Published
- **Opinion:** Dissent by Hood
- **Judges:** Hood, Myers, Kelly
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730115

## Opinion text

HOOD, Chief Judge,
dissenting:
Appellants were charged with giving and participating in an obscene exhibition. 1 *907 The exhibition or performance was described at trial by appellants’ counsel as “a lusty, busty, burlesque show, in the finest traditions of our country.” A reading of the record convinces me that the exhibition was neither legitimate nor traditional burlesque, but was what has been called “modern burlesque,” described by one author in the following manner:
a plotless musical entertainment consisting of a series of unrelated episodes and dances, all with the purpose of depicting or suggesting sexual subjects or objects. The one outstanding characteristic of modern burlesque is the fact that it is completely sex-centered. It has some low comedy and occasionally some humor, but the principal subject of both is sex. * * * The piece de resistance is the girl who disrobes, partially or entirely, and this act varies with the political season and the locality. * * * If burlesque of today is metropolitan, so also it is vice, and needs to be thought of in that light, as an aspect of social pathology. If vice implies a sense of antagonism toward existing mores, a purveying of sex in a vicarious, professional and promiscuous fashion, then burlesque is just that. * * * Although the operator may not be willing to say so to an inquirer, usually adopting a sanctimonious air, he knows, and everything in his theatre indicates he knows, that he is giving a sex show, sans excuses, sans philosophy and above all, sans clothes. He is, in that sense a professional purveyor of sex. Dressier, Burlesque as a Cultural Phenomenon (1937). 2
The jury was instructed on the elements of obscenity in language following closely the test laid down by the Supreme Court in Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957), and reiterated and elaborated upon in the later cases of Jacobellis v. State of Ohio, 378 U.S. 184 , 84 S.Ct. 1676 , 12 L.Ed.2d 793 (1964); Ginzburg v. United States, 383 U.S. 463 , 86 S.Ct. 942 , 16 L.Ed.2d 31 (1966); Mishkin v. State of New York, 383 U.S. 502 , 86 S.Ct. 958 , 16 L.Ed.2d 56 (1966); and the “Fanny Hill” case, 383 U.S. 413 , 86 S.Ct. 975 , 16 L.Ed.2d 1 (1966). With respect to community standards the jury was instructed:
Ladies and gentlemen of the jury, it is for you to be the exclusive judge of what is the common conscience of the community, as defined, and what the contemporary community standards are. You and you alone are the sole judges of this issue. In determining the common conscience in evaluating contemporary community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children. You are not to condemn or to exculpate any of these performances because of your own personal subjective standards. You are to apply contemporary community standards. 3
On this record I would affirm the convictions in spite of what I consider an unfortunate error by the trial judge in a later instruction that, on the question of contemporary community standards, the word “community” refers “to the nation as a whole and not just to one city, county, or state in this nation.” As there was no evidence of any national standard and the jury could not be expected to be acquainted with such, it was error to give the instruction. For reasons later discussed, I think it was harmless error.
*908 I do not agree with the holding in the majority opinion that in determining whether a show offends contemporary community standards, “reference must he made to community standards prevailing in the nation generally.” For that proposition the majority relies upon the opinion of Mr. Justice Brennan in Jacobellis , but apparently the Justice spoke there only for himself and Mr. Justice Goldberg. I prefer the reasoning of the Chief Justice, who in his dissent, joined in by Mr. Justice Clark, said:
It is my belief that when the Court said in Roth that obscenity is to be defined by reference to “community standards,” it meant community standards— not a national standard, as is sometimes argued. I believe that there is no provable “national standard” and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a “community” approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals. 378 U.S. at 200-01 , 84 S.Ct. at 1685 .
Ordinarily I would not rely upon a dissent but since the Supreme Court is, in the words of a recent writer, 4 “hopelessly fragmented over obscenity,” I feel that this dissent by two Justices is equal to the opinion which expresses the views of only two other Justices.
The trial court is not given any guidelines by the Supreme Court or by this court for ascertaining the supposed “national standard.” Is it to be determined by the testimony of experts? If so, by what experts and with what qualifications? If there should be testimony from these assumed experts that a majority of the cities throughout the Nation .tolerate performances like those given here, must Washington and other cities be compelled to tolerate them ? It is my opinion that the local community standard should govern and that a jury is as well qualified to determine the question as any expert. 5
There is another reason why I feel that the assumed national standard should not apply in this case. As far as I am aware, the Supreme Court cases on the question of obscenity have dealt with books, magazines, photographs and motion pictures. It may be said that such have a national character in the sense that they are the same wherever read, exhibited or shown. A performance like the one here is strictly local. It may vary from locality to locality, or may vary in the same locality from day to day or performance to performance. Such a performance ought to be judged by local standards. 6
Furthermore, I have serious doubts whether the constitutional guarantees of freedom of speech and of the press have any application to such a performance as is described in the record. Certainly we are not concerned here with freedom of the press. Likewise freedom of speech is of little concern here because speech was almost a nonessential part of the perforar- *909 anee. The complaint here is not directed at what was said but instead at what was done. The performance was essentially one of conduct. Even those who would give the broadest scope to the First Amendment recognize that it does not protect conduct. For example, Mr. Justice Black, dissenting in Ginzburg , says the First Amendment “forbids any kind or type or nature of governmental censorship over views as distinguished from conduct.” 383 U.S. at 481, 86 S.Ct. at 953. The same Justice, dissenting in Mishkin , says the First Amendment, made applicable to the States by the Fourteenth, “leaves the States vast power to regulate conduct but no power at all, in my judgment, to make the expression of views a crime.” 383 U.S. at 518, 86 S.Ct. at 969.
Mr. Justice Douglas, dissenting in Roth , after saying “there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals,” added: “No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.” 354 U.S. at 512 , 77 S.Ct. at 1323 . The same Justice, dissenting in Ginzburg , emphasizes that the First Amendment “allows all ideas to be expressed.” 383 U.S. at 491, 86 S.Ct. at 974. When Mr. Justice Stewart, concurring in Jacobellis , speaks of hardcore pornography ( 378 U.S. at 197 , 84 S.Ct. 1676 ) and repeats this expression in his dissent in Ginzburg ( 383 U.S. at 499 , 86 S.Ct. 942 ), I do not think he is referring to conduct.
From the views expressed by those who would give the greatest latitude to the protection afforded by the First Amendment, I conclude that while all may agree that an artist may paint and exhibit a portrait of a nude, the artist has no constitutional right to walk down the street in the nude. I further conclude that the exhibition here is not protected by the First Amendment. Of course, a theatrical performance may, and many do, constitute an expression of views and ideas, but the performance here, although given on stage, consisted almost entirely of conduct. It was the conduct that was objectionable. If it can be called an expression of views or ideas, then the same could be said of any conduct, regardless of its nature.
In summary, I am of the opinion that the evidence warranted a submission of the case to the jury, and that the jury, without the aid of expert testimony, was qualified to determine whether the performance constituted obscenity as defined by the trial judge. I believe this court may, as the jury obviously did, ignore the trial court’s statement concerning a national standard. I would affirm.
. Although defense counsel attempted to establish that the sole reason the appellants were charged was because the dancers appeared without any covering on their breasts (without pasties), the *907 record shows clearly the Government’s case rested on a combination of the appearance and the conduct of the dancers.
. As quoted by Judge (now Justice) Brennan in Adams Theatre Co. v. Keenan, 12 N.J. 267 , 96 A.2d 519, 523 (1953). The Judge added that burlesque answering that description “may well be considered outrightly lewd and indecent.”
. This instruction followed closely the instruction given in Roth and apparently approved by the Supreme Court. 354 U.S. at 490 , 77 S.Ct. 1304 .
. John P. MacKenzie in the Washington Post of October 2, 1967.
. “The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person’s application of contemporary community standards.” Mr. Justice Brennan dissenting in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448 , 77 S.Ct. 1325, 1331 , 1 L.Ed.2d 1469 (1957).
. See City of Newark v. Humphrey, 94 N.J.Super. 384 , 228 A.2d 550 (1967).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730115. Public record. Not legal advice.