# State v. Hudson County News Co. > Supreme Court of New Jersey · December 16, 1963 · 41 N.J. 247 URL: https://www.frixlaw.com/law-library/cases/9732836 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Hudson County News Company, Etc., and Hudson County News Dealers Supply Company, Etc., Defendants-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** December 16, 1963 - **Citations:** 41 N.J. 247; 196 A.2d 225; 1963 N.J. LEXIS 151 - **Precedential status:** Published - **Opinion:** Concurrence by Jacobs - **Judges:** Proctor, Jacobs - **Cited by:** 27 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/9732836 ## Opinion text Jacobs, J. (concurring). The definition of obscenity is imprecise and the line it draws between the obscene and non-obscene is obviously thin and obscure—so thin and obscure that many thoughtful students believe that the only workable approach is to confine obscenity to what is known as hard-core *267 pornography. Although that term itself presents some difficulties, they are much lesser in nature. See Lockhart & McClure, “Censorship of Obscenity: The Developing Constitutional Standards,” 45 Minn. L. Rev. 5 , 58-68 (1960). The Supreme Court’s high solicitude for the constitutional freedoms of expression and its actual holdings suggest that only that type of material is likely to be found obscene within the limits contemplated by Roth v. United States, 354 U. S. 476 , 77 S. Ct. 1304 , 1 L. Ed. 2d 1498 (1957). See Times Film Corp. v. City of Chicago, 355 U. S. 35 , 78 S. Ct. 115 , 3 L. Ed. 2d 73 (1957); Mounce v. United States, 355 U. S. 180 , 78 S. Ct. 267 , 3 L. Ed. 2d 187 (1957); Sunshine Book Co. v. Summerfield, 355 U. S. 372 , 78 S. Ct. 365 , 2 L. Ed. 2d 352 (1958); One, Inc. v. Olesen, 355 U. S. 371 , 78 S. Ct. 364 , 2 L. Ed. 2d 352 (1958); Lockhart & McClure, supra, at pp. 13 et seq.; Emerson, “Toward a General Theory of the First Amendment,” 72 Yale L. J. 877, 937-939 (1963). Persuasive opinions by the courts of Uew York, Massachusetts and California and by Judge Matthews in the Essex County Court embody support for that view. See People v. Richmond County News, Inc., 9 N. Y. 2d 578, 216 N. Y. S. 2d 369, 175 N. E. 2d 681 (1961); Attorney General v. Book Named “Tropic of Cancer,” 354 Mass. 11 , 184 N. E. 2d 328 (1962); Zeitlin v. Arnebergh, 59 Cal. 2d 901 , 31 Cal. Rptr. 800 , 383 P. 2d 152 (1963); State v. Hudson County News Co., 75 N. J. Super. 363 (Essex Cty. Ct. 1962). It seems to me that their approach affords the greater hope for truly satisfying the State’s primary interest in the protection of democratic freedoms along with its secondary interest in curbing obscene literature; and in any event it would reduce the danger of having basic rights trampled upon, as occurred here. Regardless of what approach is taken, reversal of the convictions is clearly called for; not only because of the legal errors dealt with in the majority opinion, but also for many other errors, which though not raised by the appellants, permeated the entire proceeding below. Thus in their first step police officers engaged in objectionable censorship. Ulustra- *268 tive is the action by one of the police captains who removed seven magazines from a rack because he felt that they were not the “right type for people to purchase.” He made no arrest and filed no complaint but told the dealer “not to put any more of these magazines up for sale.” When the jury returned its verdict almost three years later it found most of the magazines which the captain.had taken to be not obscene; but as a result of his activities they had undoubtedly been long and improperly precluded from the market. See Bantam Books v. Sullivan, 372 U. S. 58 , 83 S. Ct. 631, 637 , 9 L. Ed. 2d 584, 591 (1963); cf. Bantam Books, Inc. v. Melko, 25 N. J. Super. 292 (Ch. Div. 1953), modified 14 N. J. 524 (1954). When the officers entered the defendants’ premises (cf. Commonwealth v. Jacobs, -Mass.-, 191 N. E. 2d 873 (1963); Commonwealth v. Dorius, -Mass.-, 191 N. E. 2d 781 (1963)) they found thousands of magazines and other publications. They spent two and one-half hours looking for items which would meet their concept of obscenity; one of them defined obscenity to be that which was below his “moral standards” and below the moral standards of the people he knew in the community. They confiscated the available copies of seven magazines (one hundred of each) but years later the jury found all but one of these to be not obscene. Here again the non-obscene material had been long and improperly precluded from the market. See Bantam Books v. Sullivan, supra; Marcus v. Property Search Warrant, 367 U. S. 717 , 81 S. Ct. 1708 , 6 L. Ed. 2d 1127 (1961). During the trial the State presented a psychiatrist who was permitted to express her views as to obscenity and the community standards of Hudson County. 1 An objection to the *269 use of local community standards was overruled and, as the majority now holds, that was clearly erroneous. Also objectionable was the test of obscenity upon which the testimony of the State’s witness was apparently grounded. She seemed to take the position that portrayal of any sex abnormality or perversion was necessarily obscene; and she seemed to view any use of sex other than for propagation of the race as abnormal or perverted. Cf. Roth v. United States, supra, 354 U. S., at p. 487 , 77 S. Ct., at p. 1310 , 1 L. Ed. 2d, at p. 1508 . Thus at one point she testified that if sex is used for excitement and as an end by itself, then she would say it becomes obscene. And at another point she testified as follows: “When sex isn’t just for the propagation of the race and of the species, I would say, or the intent isn’t, then it is abnormal or perverted.” On cross-examination the defendants sought to refer to a statement by a well-recognized psychiatrist who differed with her views on a certain point, but they were prevented from doing so by a ruling of the court; that ruling was erroneous. See Ruth v. Fenchel, 21 N. J. 171 (1956). Ultimately the trial judge instructed the members of the jury that they could consider and give weight to her testimony in deciding the submitted questions of obscenity and community standards. During the trial the State tendered several witnesses as “average men” of Hudson County. Above objection, they were permitted to testify. Reference need here be made to the testimony of only the first of them. He was the general manager of a printing company who believed that he knew what the “average person” in Hudson County likes and feels; he considered that Hudson County has a “very, very high moral standard as compared with other areas” that he had visited; he expressed the view that “the word obscene as connected with these magazines is anything that would bring harm spiritually or in any way to a member of the community”; and he concluded that the magazines were not acceptable as to “moral standards” or the “standards of the community of Hudson County.” In response to an inquiry as to when sex *270 and its portrayal become obscene, he indicated that in his opinion that would occur when unrelated to the “marital chamber * * * where God meant it to be” and to “propagation of the race as I was taught.” His private beliefs and moralities clearly had no pertinency to any of the issues in the proceeding. Cf. Roth v. United States, supra; Manual Enterprises v. Day, 370 U. S. 478 , 82 S. Ct. 1432 , 8 L. Ed. 2d 639 (1962). Obviously the State should not have tendered any of the so-called average men and their testimony should have been excluded as incompetent. No man can qualify as the average man for there is no such being except in a hypothetical sense. In his charge the trial judge set the members of the jury adrift by telling them that they were free to give such weight and credit to the community standards testimony as they thought it was “entitled to under the law.” And nowhere in the charge was there any effort to remove the effects of the grossly erroneous definitions of obscenity which had confused the proceeding. Indeed the confusion was confounded when the trial judge told the jury that most persons have a conception as to the meaning of obscenity “and you may use it in your everyday life” and by his reference to a dictionary definition of obscenity which included broadly descriptive words such as “foul,” “disgusting,” “offensive to chastity or to modesty.” Admittedly these did not satisfy the law. See Roth v. United States, supra; Manual Enterprises v. Day, supra. The people of our country value their freedoms most highly. They fear censorship activities and expect that proceedings by the State will strictly adhere to their traditional concepts of fair play and fair trial. Here these concepts were departed from and the resulting convictions may not be permitted to stand. See State v. Orecchio, 16 N. J. 125, 129 (1954). I vote to reverse. Jacobs, J., concurs in result. *271 For reversal—Justices Jacobs, Fbancis, Pboctob, Hall, Schettino and Haneman—6. For affirmance—-None. Though she had training as a psychiatrist, her qualification to testify as to community standards may be doubted (compare Womack v. United States, 111 U. S. App. D. C. 8, 294 F. 2d 204, 206 , cert. denied, 365 U. S. 859 , 81 S. Ct. 826 , 5 L. Ed. 2d 822 (1961) with Yudkin v. State, 229 Md. 223 , 182 A. 2d 798, 802 (1962)), and in no event should she have been permitted, as she was, to roam about freely through the field of obscenity. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732836. Public record. Not legal advice.