# Petition — Gambino v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1123

## Text

‘
3 Supreme Court, U. &
| FILED

| DEC 15 1978

Car Wil py oan. JR. CLERK

IN THE

Supreme Court of the United States
OCTOBER TERM, 1978

No. 78 -96K

WARREN GAMBINO,
Petitioner,
versus
STATE OF LOUISIANA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF LOUISIANA

WILLIAM M. LUCAS, JR.
and
PATRICK RANKIN —
Attorneys for Petitioner
1006 First National Bank
of Commerce Building
New Orleans, Louisiana 70112
Telephone: (S04) 529-5551

SCOFIELDS' QUALITY PRINTERS, P. O. BOX $3006, N. O.. LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

i nedeceose 1

pe eae ES A en a as aa 2

QUESTIONS PRESENTED FOR REVIEW ...... 2
CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...........0.. .00ee- 3

STATEMENT OF THE CASE .................-. 4

REASONS RELIED ON FOR ALLOWANCE
OF WRIT:

1. The Louisiana Obscenity Statute,
L.R.S. 14:106, as interpreted in this
case, may not be applied retroactively ..... 8

2. The Louisiana Obscenity Statute,
L.R.S. 14:106 F (1), as applied in this
case, is void for vagueness and over-

Ne ee cae ceees 11

3. Gambino was deprived of a trial by
jury on an essential element of the
pee a GE Se 13

4. Conviction by five out of six jurors
does not satisfy the requirements of
the Sixth and Fourteenth
EES TA Ns 14

5. The standard applied by the Louisiana
Supreme Court in its independent
review of “National Screw” con-
travened the First and Fourteenth
Pe Ls ca iesa'ws c'eeee 16

TABLE OF CONTENTS (Continued)

Page
EN As Hee udkics'y ss keanereegnerel ss 19
ES OPN GE GEVIGE cicccccsccccccscces 20
APPENDIX:
1. Opinion of the Louisiana Supreme
hs Caubibie- sae bese Weis obese ens la
2. Certificate of denial of rehearing by
the Louisiana Supreme Court ......... 16a
ee I cs diy CPE Lb dibaa ks 6 6-0-0 Sa 8 bh bss 17a
Oo ie Sees hos eV ckines 4s ebe-e Wa 24a
Ti EE, 4.5 edd oR ea cA aeoawky ede. 24a
CR + Siakce tanita tbphkecd esses 25a

TABLE OF AUTHORITIES
Cases:

BALLEW v. GEORGIA, 985S.Ct. 1029 (1978) .14,15,16

BOUIE v. CITY OF COLUMBIA, 378 U.S.
347, 84 S.Ct. 1697 (1964) ......... ee eee 8

CONNALLY v. GENERAL CONSTRUC-
TION CO., 269 U.S. 385, 46 S.Ct. 126
CRs ill as Uae GLa disc ila he's wai d, 0a'e'o 11

DANIEL BURCH AND WRESTLE, INC. v.
STATE OF LOUISIANA, U.S. S.Ct. No. 78-
NE EEE APO CED ko DOD aR eS RPE 6,16

HUFFMAN v. U.S., 502 F.2d 419 (D.C. Cir.
BY COLE FAA VARY CRAKE MEM Fens gaeeies 10

TABLE OF AUTHORITIES (Continued)

Page
INTERSTATE CIRCUIT, INC. v. DALLAS,
390 U.S. 676, 88 S.Ct. 1298 (1968) ........... 11
JACOBELLIS v. STATE OF OHIO, 378 U.S.
£06, G6. St: 16GO CIR) «vin. CONES a 12
LANZETTA v. NEW JERSEY, 306 U.S. 451,
SO Bit O68 CN 58 oi ne RK een 11
McKINNEY v. ALABAMA, 424 U.S. 669, 96
ie BE Cas cceinss Oh ee Ab adhe ada sch be 13
MILLER v. CALIFORNIA, 413 U.S. 15, 93
Se PO TI ec dees Aa ed WOE Khan’ 16
NIEMOTKO v. MARYLAND, 340 U.S. 268,
95 SEh. 250 GSR cnc ee eee a 11
PAPCHRISTOU v. CITY OF JACKSON-
VILLE, 405 U.S. 156, 92 S.Ct. 839 (1972) ..... 11
PENTHOUSE INTERN., LTD. v.
McAULIFFE, 454 F.Supp. 289 (N.D. Ga.
OGTR boi ed Sc bas acer ACRE i 17,19
PIPEFITTERS LOCAL UNION NO. 562 v.
U.S., 407 U.S. 385, 92 S.Ct. 2247 (1972) ...... 6
RABE v. WASHINGTON, 405 U.S. 313, 92
Bh EE as wh iv Senda ere OMe a Acts 11
SILBER v. U.S., 370 U.S. 717, 82 S.Ct. 1287
Ns Wes cae eaaes DECANE LA Rees 6
STATE v. LONG, 133 La. 580, 63 So. 180
| 5) ROMER aa aie Cer pe oA En LOS gE oN ie UL Sr gv 10

iv
TABLE OF AUTHORITIES (Continued)

Page

STATE v. WRESTLE, INC., 360 So.2d 831

Ce Be 6 ides i bot Biv Rede acdc ee 6
THORNHILL v. ALABAMA, 310 U.S. 88, 60

BLS, Tee awdcer din tdeebh co peeedeebde 11
UNITED BROTHERHOOD, ETC. v. U.S.,

330 U.S. 308, 67 S.Ct. 77S (IOGF) oc viiicciccvKeors 13
UNITED STATES v. HAYWARD, 420 F.2d

BER Cr. BI evra tad vt ei 13
WILLIAMS v. FLORIDA, 399 U.S. 78, 90

SE EE icicle oes Kae teacteekckavn 15
WINTERS v. NEW YORK, 333 U.S. 507, 68

Ss OE CD isi ain dnd 4 ddd alee ca weekk 11
Constitutional and Statutory Authorities:
Constitution of the United States:

Gad A a hoo Diknhcdis a dudes 2,3,16,17

Oi RI din bea ie ec cbeaeks 2,3,13,14

TOU AAS iia ih Ede dive Shove 2,3,14,16
Constitution of the State of Louisiana, Article

C, BCP | ha ss kiki s Peel hake eiaeks 3,14
Title 28, United States Code, Section 1257(3) ..... 2
Louisiana Revised Statutes 14:41 ......... 4,10,24a

Louisiana Revised Statutes 14:41.1 ........ 4,10,24a

v
TABLE OF AUTHORITIES (Continued)

Page

Louisiana Revised Statutes 14:89 ......... 4,10,25a
Louisiana Revised Statutes

DT cise sa vvadeeeveden vos 1,2,4,5,8,14,17a-24a

Louisiana Revised Statutes 14:106 F (1) ...... passim

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978

No.

WARREN GAMBINO,
Petitioner,

versus

STATE OF LOUISIANA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF LOUISIANA

Petitioner respectfully prays that a writ of certiorari
issue to review the final order of the Supreme Court of
the State of Louisiana entered herein on September 5,
1978, affirming Petitioner’s conviction for the crime of
obscenity under Louisiana Revised Statute 14:106.

OPINION BELOW

The opinion of the Louisiana Supreme Court is
reported at 362 So. 2d 1107 (La. 1978). A copy of said
opinion is appended hereto, infra at p. 1a.

2

JURISDICTION

The final order of the Louisiana Supreme Court was
made and entered on September 5, 1978. The Louisiana
Supreme Court denied your Petitioner’s application for
rehearing on October 5, 1978 and, on the same day is-
sued a stay of mandate until December 15, 1978, pend-
ing application for certiorari to this Honorable Court.
The jurisdiction of this Court is invoked under 28
U.S.C. 1257(3).

QUESTIONS PRESENTED FOR REVIEW

I. May the Louisiana Obscenity Statute, L.R.S.
14:106, as interpreted in this case, be applied retroac-
tively?

Il. Is the Louisiana Obscenity Statute, L.R.S.
14:106 F (1), as applied in this case, void for vagueness
and overbreadth?

Ill. Did the Trial Court’s refusal to charge the jury
on an essential element of the offense deny defendant
his Sixth and Fourteenth Amendment rights?

IV. Does conviction by five out of six members of a
jury satisfy the requirements of the Sixth and
Fourteenth Amendments?

V. Did the Louisiana Supreme Court, in its in-
dependent review of “National Screw” apply standards
contravening the First and Fourteenth Amendments?

3

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Constitution of the United States, Amendment
I: “Congress shall make no law ... abridging the
freedom of speech, or of the press...”

The Constitution of the United States, Amendment
VI: “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, .. .” é

The Constitution of the United States, Amendment
XIV, Section 1:”. . .nor shall any state deprive any per-
son of life, liberty, or property without due process of
ee

The Constitution of the State of Louisiana, Article I,
Section 17: ”. . . A case in which the punishment may
be confinement at hard labor or confinement without
hard labor for more than six months shall be tried
before a jury of six persons, five of whom must concur
to render a verdict... .”

Louisiana Revised Statutes 14:106 F (1):

Except for those motion pictures, printed
materials and photographic materials show-
ing actual! ultimate sexual acts or simulated or
animated ultimate sexual acts when there is

4

an explicit, close-up depiction of human
genital organs so as to give the appearance of
the consummation of ultimate sexual acts, no
person, firm or corporation shall be arrested,
charged or indicted for any violation of a
provision of this section until such time as the
material involved has first been the subject of
an adversary hearing under the provisions of
this section, wherein such person, firm or cor-
poration is made a defendant and, after such
material is declared by the court to be obscene,
such person, firm or corporation continues to
engage in the conduct prohibited by this sec-
tion. The sole issue at the hearing shall be
whether the material is obscene.

Louisiana Revised Statutes 14:106 is printed in its
entirety, infra, at p. 17a.

Louisiana Revised Statutes 14:41, 14:41.1 and 14:89,
which are of only marginal relevance, are printed infra
at p. 24a.

STATEMENT OF THE CASE

On July 27, 1977, in anin rem adversary hearing held
in accordance with L.R.S. 14:106 F (1), supra, the July
issue of “National Screw” magazine was declared
obscene by a magistrate of the Criminal District Court
of Orleans Parish. The newsstand operator who was
made a party to that proceeding was warned that if he

5

continued to sell the magazine, he would be subject to
criminal charges. Warren Gambino was not a party to
nor aware of that hearing, yet he was arrested for the
sale of the same issue of the same magazine three days
later on July 30, 1977.

Warren Gambino received no prior adversary hear-
ing or warning to cease selling the magazine. He was
charged, tried, convicted and sentenced to imprison-
ment under the broad provisions of L.R.S. 14:106 A, in-
fra at p. 17a, rather than the narrower provisions of
L.R.S. 14:106 F (1), supra. Why the District Attorney
chose to afford a prior adversary hearing to the news-
stand owner but not Gambino when both sold the same
publication is an unanswered question.

In addition to sexually oriented material, “National
Screw” contained an abundance of written and pictorial
material, including public figure interviews, political
comment, popular sociology, and short stories.
“National Screw” contains no depiction of sexual
penetration.

Prior to trial, Gambino filed a Motion to Quash alleg-
ing that his arrest for obscenity was unlawful in the
absence of a prior adversary hearing mandated by
L.R.S. 14:106 F (1), supra. The Trial Judge denied the
Motion, finding that “National Screw” contained depic-
tions of “the consummation of ultimate sexual acts” on
three pages. An Exception to the ruling was perfected
and the issue raised again on appeal to the Louisiana
Supreme Court by means of a Bill of Exceptions.

6

Gambino’s first trial, on September 29, 1977, result-
ed in a hung jury. At his second trial, on November 9,
1977, asix man jury convicted Gambino by a 5 to 1 vote.
Although no exception has reserved to the majority
jury verdict, its implicit issue constitutes “plain error”,
STATE v. WRESTLE, INC., 360 So. 2d 831 (La. 1978),
and may be considered by this Honorable Court pur-
suant to Supreme Court Rule 40(d)(2) and SILBER v.
UNITED STATES, 370 U.S. 717, 82 S.Ct. 1287 (1962);
PIPEFITTER’S LOCAL UNION NO. 562 v. UNITED
STATES, 407 U.S. 385, 92 S.Ct. 2247 (1972). This
Honorable Court has granted Writs of Certiorari in
STATE v. WRESTLE, INC., supra, sdb nom DANIEL
BURCH v. STATE OF LOUISIANA (No. 78-90) in
order to determine the constitutionality of conviction
by 5 members of a six man jury.

At both trials, the trial judge refused to grant Defen-
dant’s requested jury charge number 9, which stated:

“Determination of this second element is a
three-step procedure. First you must deter-
mine whether or not the magazine shows ac-
tual ultimate sexual acts or simulated or
animated ultimate sexual acts when there is
an explicit close-up depiction of human sexual
organs so as to give the appearance of the con-
summation of ultimate sexual acts.”

An Exception was reserved to the refusal to grant
this charge and the issue was raised on appeal to the

7

Louisiana Supreme Court by way of a Bill of Excep-
tions.

Following his conviction, Gambino was sentenced to
six months imprisonment and a $1,000.00 fine.

On appeal, the Louisiana Supreme Court, by a four
to three plurality and for the first time, held that the
“consummation of ultimate sexual acts” did not require
sexual penetration. One of the concurring justices
opined that “ultimate sexual acts” were “all behavior
clearly having no goal other than sexual penetration”
but that the “consummation” of such behavior did not
require sexual penetration. Three dissenting justices
generally stated that the magazine showed no
“ultimate sexual acts” and that Gambino had been un-
lawfully arrested.

In its opinion, the Louisiana Supreme Court failed to
explain why the jury should not have been allowed to
determine whether or not the magazine depicted “con-
summation of ultimate sexual acts.” Since, the opinion
incorrectly stated that the jury had, in fact, made such a
determination, the issue was again raised in an applica-
tion for rehearing which was denied with three justices
dissenting.

In connection with its independent review of
“National Screw”, the Louisiana Supreme Court stated
at 362 So. 2d 1111:

“Conceding arguendo that some material in
the magazine is of a serious literary, artistic,
political or scientific value, that material has
no rational relationship to that found by the
jury, the trial judge and this Court to be hard-
core sexual depictions, it is the offensive
depiction of sexual conduct itself which must
have ‘serious literary, artistic, political or
scientific value’ to merit First Amendment
protection.”

REASONS RELIED ON FOR
ALLOWANCE OF WRIT

1. The Louisiana Obscenity Statute, L.R.S. 14:106,

As Interpreted In This Case, May Not Be Applied
Retroactively:

In BOUIE v. CITY OF COLUMBIA, 378 US. 347,
352, 353, 84 S.Ct. 1697, 1702 (1964), this Honorable
Court stated:

“There can be no doubt that a deprivation of
the right of fair warning can result not only
from vague statutory language but also from
an unforeseeable and retroactive judicial ex-
pansion of narrow and precise statutory lan-
guage. As the Court recognized in Pierce v.
United States, 314 U.S. 306, 311, 62S.Ct. 237,
239, ‘judicial enlargement of a criminal act by
interpretation is at war with a fundamental

9

concept of the common law that crimes must
be defined with appropriate definiteness.’
Even where vague statutes are concerned, it
has been pointed out that the vice in such an
enactment cannot ‘be cured in agiven case bya
construction in that very case placing valid
limits on the statute,’ for

‘the objection of vagueness is two-fold:
inadequate guidance to the individual
whose conduct is regulated, and inade-
quate guidance to the triers of fact. The
former objection could not be cured
retrospectively by a ruling either of the
trial court or the appellate court, though
it might be cured for the future by an
authoritative judicial gloss. * * Freund,
The Supreme Court and Civil Liberties, 4
Vand.L.Rev. 533, 541 (1951).”

In Louisiana, one may generally be arrested and
prosecuted for the crime of obscenity only if he has
been judicially warned in a prior adversary hearing that
the materials he intends to distribute are obscene. See
L.R.S. 14:106 F (1). The sole exception to this legislative
policy occurs in the case of materials which show “an
explicit close-up depiction of human genital organs so
as to give the appearance of the consummation of ul-
timate sexual acts”.

10

Prior to the Louisiana Supreme Court's opinion in
this case, most people would have thought that the
“consummation of ultimate sexual acts” required some
form of sexual penetration. Such a construction is
suggested by other Louisiana Statutes and their judicial
interpretations establishing criminal penalties for acts
of coitus, anal and oral intercourse. The crimes of Rape,
L.R.S. 14:41, infra at p. 24a, Homosexual Rape, L.R.S.
14:41.1, infra at p. 24a, and as interpreted in STATE v
LONG, 133 La. 580, 63 So. 180 (1913), Crime Against
Nature 14:89, infra at p. 25a, all require sexual penetra-
tion “however slight” for completion or consumma-
tion. Likewise, the only judicial gloss, prior to the in-
stant case, indicated that penetration was the sine qua
non of “ultimate sexual acts”. See HUFFMAN v. UNIT-
ED STATES, 502 F.2d 419, 423 (D.C. Cir. 1974),

Armed with common sense, a dictionary, and the
existing body of law, Warren Gambino could not
possibly have foreseen immediate arrest and prosecu-
tion, much less conviction and imprisonment, for sell-
ing acopy of “National Screw” which contains no depic-
tions of sexual penetration.

Under such circumstances, the Louisiana Supreme
Court's interpretation of L.R.S. 14:106 F (1) should not
be applied retroactively.

11

2. The Louisiana Obscenity Statute, R.S. 14:106 F
(1), As Applied In This Case, Is Void For Vagueness
And Overbreadth:

Subjective definitions of criminal conduct offend the
due process requirements of the Fourteenth Amend-
ment because they fail to provide fair notice of “what
the law commands or forbids,” LANZETTA v. NEW
JERSEY, 306 U.S. 451, 453, 59 S.Ct. 618, 619 (1939);
see also CONNALLY v. GENERAL CONSTRUC-
TION CO., 269 U.S. 385, 46 S.Ct. 126 (1926); RABE v.
WASHINGTON, 405 U.S. 313, 92 S.Ct. 993 (1972); IN-
TERSTATE CIRCUIT, INC. v. DALLAS, 390 U.S. 676,
88 S.Ct. 1298 (1968); WINTERS v. NEW YORK, 333
U.S. 507, 68 S.Ct. 665 (1948), and because they invite
arbitrary and erratic enforcement of the law, see
PAPACHRISTOU v. CITY OF JACKSONVILLE, 405
U.S. 156, 92 S.Ct. 839 (1972); NIEMOTKO v.
MARYLAND, 340 U.S. 268, 71 S.Ct. 325 (1951);
THORNHILL v. ALABAMA, 310 U.S. 88, 60S.Ct. 736
(1940). Although the phrase “consummation of ul-
timate sexual acts” is capable of an objective definition,
i.e., sexual penetration, the Louisiana Supreme Court
expressly rejected such an objective standard.

Instead of providing an objective definition, the opin-
ion of Justices Summers, Sanders and Marcus merely
described the photographs in question and subjectively
concluded that they “give the appearance of the con-
summation of the ultimate sexual act of cunnilingus.”
This subjective standard appears to be the same “I

12

know it when I see it” advanced by Justice Stewart's
concurring opinion in JACOBELLIS v. STATE OF
OHIO, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683 (1964).
The manner in which the photographs, which show no
actual contact between oral and genital organs, depict
“consummation” is locked forever in the minds of the
justices who formulated the opinion, where it provides
no instruction for those who must enforce or abide by
the law.

The concurring opinion of Justice Dennis piles
subjectivity on subjectivity. Although the other ma-
jority justices identified “ultimate sexual acts” as
coitus, anal and oralintercourse, Justice Dennis defined
the phrase as “all behavior clearly having no goal other
than sexual penetration”. Even if this subjectively
phrased definition of “ultimate sexual acts” is correct,
what, other than sexual penetration, constitutes “con-
summation” of behavior clearly having no goal other
than sexual penetration?” The opinion suggests only
that the actions depicted must be near penetration.
This “close enough” standard offers no aid to those
who must interpret the law.

The abuses which must follow such subjective inter-
pretations are reflected by the facts of this case. Three
days prior to Gambino’s arrest, the July, 1977 issue of
“National Screw” was declared obscene in a prior
adversary hearing held pursuant to L.R.S. 14:106 F (1)
in the Criminal District Court for Orleans Parish. The
newsstand operator who was made a party to that

13

hearing was given a “judicial warning” to cease selling
the magazine but Warren Gambino, who was not made
a party to the hearing and who received no such warn-
ing was tried, convicted and sentenced to imprison-
ment for selling the same magazine. Cf. McKINNEY v.
ALABAMA, 424 U.S. 669, 96 S.Ct. 1189 (1976). The
subjective nature of the test for “consummation of ul-
timate sexual acts” announced by the Louisiana
Supreme Court in this case will foster such erratic en-
forcement in the future and should not be allowed to

stand.

3... Gambino Was Deprived Of A Trial By Jury On An
Essential Element Of The Offense:

“Implicit in the right to trial by jury afforded criminal
defendants under the Sixth Amendment to the Con-
stitution of the United States is the right to have the
jury decide all relevant issues of fact.” UNITED
STATES v. HAYWARD, 420 F.2d 142, 144 (D.C. Cir.,
1969); See also UNITED BROTHERHOOD, ETC. v.
UNITED STATES, 330 U.S. 395, 408, 409, 67 S.Ct.
775, 782 (1947).

The issue of whether or not “National Screw” con-
tained depictions of “consummation of ultimate sexual
acts” was an essential and relevant issue of fact insofar
as Gambino could not have been convicted of (or even
arrested for or charged with) the crime of obscenity in
the absence of such depictions. See L.R.S. 14:106 F (1).

14
a

Despite Gambino’s requests for special jury charges,
the Trial Court refused to submit the issue to the jury.
The Trial Court’s error was compounded because the
jury was instructed to apply the broader standards of
L.R.S. 14:106 A only, and may thus have convicted
Gambino on the basis of depictions which normally
would have subjected him only to an adversary hear-
ing. Compare 14:106 A (2) (b)-(c)-(d) with 14:106 F (1).

It should be noted that the trial court not only refus-
ed defendants’ special instructions but did not even
read subparagraph F to the jury, thus pretermitting
any possible knowledge or consideration by the jurors
of this element of the crime. In effect, a directed verdict
of an essential element of the offense was granted the
State.

4. Conviction By Five Out Of Six Jurors Does Not
Satisfy The Requirements Of The Sixth And Four-
teenth Amendments:

Prior to 1974, Louisiana law provided for a jury of
five for lesser felonies with a requirement for a un-
animous verdict. The law then was substantially
similar to the Georgia jury provision invalidated earlier
this year by this Court in BALLEW v. GEORGIA, 98
S.Ct. 1029 (1978). The new 1974 Louisiana constitu-
tion changed this requirement by adding a sixth juror,
though requiring that only five must concur to render a
verdict. Article I, Section 17. It is submitted that the
principles and considerations which caused this Court

15

to invalidate the Georgia jury provision in BALLEW ap-
ply with equal if not greater force to the Louisiana
provision for a non-unanimous six-person jury.

In WILLIAMS v. FLORIDA, 399 U.S. 78, 90 S.Ct.
1893 (1970) this Court held that a six-man jury did not
violate Sixth Amendment rights, because such a jury
should probably be large enough to promote group
deliberation, free from outside attempts at intimida-
tion, and should provide a fair possibility for obtaining
a representative cross-section of the community. The

Court stated:

“But we find little reason to think that these
goals are in any meaningful senseless likely to
be achieved when the jury numbers six, than
when it numbers twelve — particularly if the
requirement of unanimity is retained.” (emphasis
added) 399 U.S. 100, 90 S.Ct. 1906.

In Louisiana, since unanimity is not required in a six-
man jury, the question arises as to whether the goals
mentioned by this Court will be achieved by permit-
ting conviction upon the agreement of five of the six
jurors. In BALLEW, Justice Blackmun, writing for the
Court, expressed the concern that with a jury of less
than six, the chance for hung juries would decline, to
the detriment of the defense. Clearly, this concern ap-
plies to a Louisiana six-person jury with greater force,
since only five persons are required for conviction.

16

The concurring opinions in BALLEW, supra,
suggested that a jury of less than six would “fail to
represent the sense of the community and hence not
satisfy the fair cross-section requirements of the Sixth
and Fourteenth Amendments”. 98 S.Ct. 1042. In an
obscenity prosecution like the present case, this failure
is especially critical as the jury must, as a practical
matter, draw on the experiences of its members in
determining community standards. When the ex-
periences of one juror may be ignored, as in this case,
the probability of a correct determination is probably
less and certainly nogreater than witha five man jury.

As previously stated, this issue has already been
accepted for review in DANIEL BURCH AND WRES-
TLE, INC. v. STATE OF LOUISIANA, No. 78-90 on
the docket of this Court. It is respectfully submitted
that a Writ of Certiorari should likewise be granted in
this case.

5. The Standard Applied By The Louisiana Supreme
Court In Its Independent Review Of National Screw
Contravened The First And Fourteenth Amendments:

In order to lose the protective blanket of the First
Amendment, it must be determined that an allegedly
obscene publication “taken as a whole, lacks serious
literary, artistic, political or scientific value.” MILLER
v. CALIFORNIA, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615
(1973). In its independent review of “National Screw”,
the Louisiana Supreme Court refused to apply this

17

“taken as a whole” standard, stating at 362 So.2d 1111,
1112:

“Conceding arguendo that some material in
the magazine is of a serious literary, artistic,
political or scientific value, that material has
no rational relationship to that found by the
jury, the trial judge and this Court to be hard-
core sexual depictions. It is the offensive
depiction of sexual conduct itself which must
have ‘serious literary, artistic, political or
scientific value’ to merit First Amendment
protection.”

The contention that only the portions of a magazine
having a “rational relationship” to offensive portrayals
effectively removes all magazines which offend in part
from First Amendment protection because magazines,
unlike novels or movies which depend on organic con-
sistency for artistic success, consist of more or less un-
related articles and pictures whose only “rational
relationship” is an appeal to the consumer market serv-
ed.

Although this Honorable Court has never directly
addressed this issue, the District Court in
PENTHOUSE INTERN., LTD. v. McAULIFFE, 454
F.Supp. 289 (N.D. Ga. 1978) held independent review
of discrete portions of a magazine unconstitutional.
The Court stated at 454 F.Supp. 303:

~

18

Solicitor McAuliffe has argued that the
‘taken as a whole’ test was devised to apply to
‘works’ and that when a magazine which
typically is an eclectic publication containing
several seemingly unrelated pieces tied
together only by a central approach or theme
is perused, discrete works within the
magazine may be ‘taken as a whole’ and may
independently be adjudged obscene. In sup-
port of this position, Mr. McAuliffe refers the
court to famous footnote seven of Miller
which cites with approval the statement in
Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245,
33 L.Ed.2d 312 (1972), that‘[a] quotation from
Voltaire in the flyleaf of a book will not
constitutionally redeem an otherwise obscene
publication.’ Defendant McAuliffe’s position
is clearly incorrect.

First, the ‘taken as a whole’ standard of
Miller is not really new, see Roth v. United States,
354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498
(1957), and simply reflects in essence the prac-
tical fact that an arguably obscene book or
magazine is going to be published or banned as
a discrete unit. It is practically impossible and
legally impermissible for defendant McAuliffe
to tip-toe through each and every ‘Playboy’,
‘Oui’ and ‘Penthouse’ vended in Fulton
County, scissors in hand, and to excise those
portions of the magazine thought to be

19

obscene. A magazine is a ‘whole’ within the
meaning of Miller and it must be judged as
such,

It is submitted that the ‘holding in PENTHOUSE
INTERNATIONAL, supra, is correct and that of the
Louisiana Supreme Court is erroneous.

CONCLUSION

For the above reasons, the issuance of the mandate
by the Louisiana Supreme Court should be stayed anda
writ of certiorari should be issued to review the judg-
ment of that Court.

Respectfully submitted,

WILLIAM M. LUCAS, JR.
AND

PATRICK RANKIN

1006 First National Bank
of Commerce Bldg.

New Orleans, LA 70112

Telephone: (504) 529-5551

20

CERTIFICATE OF SERVICE

I hereby certify that I have on this
Decem ber, 1978, forwarded three copies o
ing Petition for Certiorari to the District
the Parish of Orleans, Honorable Harry
United States mail, postage prepaid.

——. day of
f the forego-
Attorney for
Connick, by

WILLIAM M. LUCAS, JR.

la
APPENDIX

STATE of Louisiana

versus
Warren GAMBINO.
No. 61728.
Supreme Court of Louisiana.
Sept. 5, 1978.
Rehearing Denied Oct. 5, 1978.

SUMMERS, Justice.

By a bill of information the District Attorney of
Orleans Parish charged defendant Warren Gambino
with the exhibition, management and display of hard-
core sexual conduct in the July 1977 issue of a magazine
entitled “National Screw”, a violation of the Obscenity
Act. La.Rev.Stat. 14:106.! After trial by jury defendant

1. The pertinent provisions of the obscenity statute follow:
“A. The crime of obscenity is the intentional:
* 7 “ .

“(2) Participation or engagement in, or management,
roduction, presentation, performance, promotion, ex-
Fibition, advertisement, sponsorship, or display of, hard
core sexual conduct when the trier of fact determines
that the average person applying contemporary com-
munity standards would find that the conduct, taken asa

2a 3a

was convicted and sentenced to pay a fine of $1,000 and
to serve six months in the parish prison. The
assignments of error urged on this appeal are grouped
into six arguments.

whole, appeals to the prurient interest; and the hardcore
sexual conduct, as specifically defined herein, is present-
ed in a patently offensive way; andthe conduct taken asa

eee acks serious literary, artistic, political, or scientific
value.

“Hard core sexual conduct is the public portrayal, for
its own sake, and for ensuing commercial gain of:

“(a) Ultimate sexual acts, normal or perverted, actual,
simulated or animated, whether between human beings,
animals, or an animal and a human being; or

“(b) Masturbation, excretory functions or lewd ex-
hibition, actual, simulated or animated, of the genitals,
pubic hair, anus, vulva, or female breast nipples; or

“(c) Sadomasochistic abuse, meaning actual,
simulated or animated, flagellation or torture by or upon
a person who is nude or clad in undergarments or in a
costume which reveals the pubic hair, anus, vulva,
a or female breast nipples, or in the condition of

ing fettered, bound, or otherwise physically restrain-
ed, on the part of one so clothed; or

“(d) Actual, simulated, or animated touching, caress-
ing, or fondling of, or other similar physical contact with
a pubic area, anus, female breast nipple, covered or ex-

ed, whether alone or between humans, animals, or a
uman and an animal, of the same or opposite sex, in an
act of apparent sexual stimulation or gratification; or
“(e) Actual, simulated, or practi stimulation of a
human genital organ by any device whether or not the
device is delenit manufactured, or marketed for such

urpose.

“(3) Sale, allocation, consignment, distribution, dis-
semination, advertisement, exhibition, or dis lay of
obscene material, or the preparation, oh > in
publication, or printing of obscene material for sale,
allocation, consignment, distribution, advertisement, ex-
hibition, or display.

“Obscene material is any tangible work or thing which
the trier of fact determines (a) that the average person
applying contemporary community standards would
find, taken as a whole, appeals to the prurient interest,
and (b) depicts or describes in a patently offensive way,
hard core sexual conduct specifically defined in
Paragraph (2) above; and (c) the work or t ing taken asa

whole lacks serious literary, artistic, political, or scientific
value.

“(4) Requiring as a condition toa sale, allocation, con-
PB ey danny for resale of any paper, magazine,
book, periodical, or publication to a purchaser or con-
signee that such purchaser or consignee also receive or
accept any obscene material, as defined in Paragraph (3)
above, for resale, distribution, display, advertisement, or
exhibition purposes; or denying or threatening to deny a
franchise to, or oo a a regen on or against, a per-
son by reason of his - usal to accept, or his return of,

ene material.
“Sls) Sokctetion or enticement of an unmarried per-
son under the age of seventeen years to commit any act
prohibited by Paragraphs (1), (2), or (3) above. .

“(6) Advertisement, exhibition, or display of sexua
violent material. ‘Violent material’ is any tangible wor
or thing which the trier of facts determines depicts fees
or simulated patently offensive acts of violence, includ-
ing but not limited to, acts depicting sadistic ev ge
whisein , beatings, torture, and mutilation of t :
human Tole as described in Subparagraph (c) o'
Paragraph (2) of Subsection A herein.

. Except for those motion pictures, printed
meer a photographic materials showing actual ul-
timate sexual acts or simulated or animated ultimate er
ual acts when there is an explicit, closeup depiction Ms
human genital organs so as to give the appearance of the
consummation of ultimate sexual acts, no person, ope
or corporation shall be arrested, charged, or indicted =
any violations of a provision of this Section until oer
time as the material involved has first been the subject re)
an adversary hearing under the provisions of this Sec-
tion, wherein such person, firm, or corporation is madea
defendant and, after such material is declared by the
court to be obscene, such person, firm, or corporation
continues to engage in the conduct prohibited by or
Section. The sole issue at the hearing shall be whether
the material is obscene.”

4a

Briefly, the record facts giving rise to this prosecu-
tion show that defendant is the owner of the Fast Stop
Food Store No. 3 at the corner of Elysian Fields and
Filmore Avenue in a _ predominantly residential
neighborhood of the City of New Orleans. It is a con-
venience store where food; liquor, and popular
magazines are sold, including such sexually oriented
magazines as “Playboy”, “Penthouse”, “National
Screw”, and “Oui”. Before this prosecution defendant
appeared before the City Council on a complaint by a
neighborhood Catholic school that these and other sex-
ually oriented magazines were on display in a con-
spicuous place at the center of his store in such a
manner that school children could see and buy them. At
the Council’s suggestion these sexually oriented
magazines were placed in a separate rack at the far end
of the cashier’s counter so that only the titles were visi-
ble, and the matter was dismissed.

Officer Rickey Bruce entered defendant’s store on
July 29, 1977 to investigate obscenity violations. From
the book rack at the end of the cashier’s counter he
selected two magazines, “Climax” and “National
Screw”, issue of July 1977, which he purchased, paying
$4.18 for both. After ascertaining that defendant was
the owner of the store, Officer Bruce obtained an
arrest warrant and Gambino was arrested. The
magazine “National Screw”, issue of July 1977, is the
subject of this prosecution.

Assignments 1, 2, 3, 14, 15, 16 and 19 — Essentially
these assignments question whether the magazine

5a

depicts “actual ultimate sexual acts or simulated or
animated ultimate sexual acts” as set forth in Section
F(1) of the Obscenity Act.

‘

The Obscenity Act prohibits the arrest of any person
for violating its provisions unless they have been af-
forded a prior adversary hearing at which the suspect
has been made a defendant and the material has been
found to be obscene. Section F(1) of the Act creates an
exception to this prohibition permitting an arrest and
prosecution without a prior adversary hearing when
the obscene material shows “ actual ultimate sexual acts
or simulated or animated ultimate sexual acts when
there is an explicit, close up depiction of human genital
organs so as to give the appearance of consummation of
ultimate sexual acts.”

If this Court agrees with the jury that the four pic-
tures in question in this magazine depict ultimate sex-
ual acts with explicit, close-up depiction of human
genital organs so as to give the appearance of consum-
mation of ultimate sexual acts then the arrest and
prosecution of defendant without a prior adversary
hearing was not prohibited by law.

All four pictures are photographs of women engaged
in acts of cunnilingus. At least three of the photo-
graphs depict the vaginas of participants. In one photo-
graph there is an explicit, close-up depiction of a
woman’s vagina. All photographs give the appearance
of the consummation of the ultimate sexual act of cun-

6a

nilingus. In two of the photographs all of the subjects
are nude; in another one of the female participants is
partially clothed; and the other, aclose-up photograph,
only portrays the vagina of one participant and the
tongue, mouth, face, head, hand and shoulder of the
other.

In addition to the finding of the jury, the trial judge
observed in his reasons for the sentence imposed that
he had reviewed the magazine and in his opinion the
photographs did depict ultimate sexual acts. He stated,
moreover, that the magazine had no literary, artistic,
political or scientific value. In fact, he declared, the
publication was trash and should not be sold in New
Orleans. To impose a lesser sentence, he held, would
depreciate the nature of defendant's crime.

An argument is made by the defense that his convic-
tion was erroneous because none of the photographs
depict penetration, which he asserts is essential to an
ultimate sex act. Reliance is placed upon the definition
of rape to support this argument. Because no penetra-
tion is depicted, the defense argues, the photograph
depicts only imminent lesbian activity, acts not con-
sidered obscene in Huffman v. United States, 163
U.S.App.D.C. 417, 502 F.2d 419 (1974). In the Huffman
Case the material consisted of collections of photo-
graphs of two nude or near-nude females shown un-
dressing, caressing, fondling and embracing each
other. The photographs were accompanied by brief
written material, including a trilingual statement pur-
portedly addressed to “serious students of art.”

7a

Photographs at issue in the case at bar cannot be
compared with the lesbian activity in the Huffman Case.
Those at issue here are explicit, ultimate acts of deviate
sexual conduct, not the remote foreplay found in Huff-
man. In the instant case the photographs depict activity
which falls within the standard of hard-core sexual
conduct formulated in Miller v. California, 513 U.S. 15,
93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That standard
permits regulation of “patently offensive repre-
sentations or descriptions of ultimate sexual acts, nor-
mal or perverted, actual or simulated.”

Furthermore, the statutes on rape relied upon to
support the defense contention that the conduct at
issue here was not the ultimate sex act reprobated by
the Obscenity Act are inapplicable. La.Rev.Stat. 14:41-
41.1.2 Those acts apply to rapes, both heterosexual and
homosexual, involving vaginal and anal intercourse.
Sexual acts prohibited by those statutes involving at
least one man are unlike the deviant sexual acts at issue
here involving only women. The rape statutes cited do
not apply either factually or legally to the case at bar.

2 La.Rev.Stat. 14:41: i

“Heterosexual rape is the act of sexual intercourse
with a female person not the wife of, or judicially
separated from bed and board from, the offender,
committed without her lawful consent. Emission is not
necessary; and any sexual penetration, vaginal or anal,
however slight, is sufficient to complete the crime.”

La.Rev.Stat. 14:41.1:

“Homosexual rape is the act of anal sexual intercourse
with a male person committed without his consent. Emis-
sion is not necessary, and any anal sexual penetration,
however slight, is sufficient to complete the crime.”

8a

Thus in our independent review we agree with the
jury, which is the repository of community standards
in this case, that the photographs in question depict the
“ultimate sexual acts” contemplated by Section F(1).
Accordingly, the trial judge correctly denied defen-
dant’s motion to quash, motion to suppress, and mo-
tion for a prior hearing which are at issue in these
assignments of error.

Assignment 18 — Alternatively, the defense contends,
that the exception to a prior adversary hearing con-
tained in Section F(1) of the Obscenity Act is invalid
because the term “ultimate sexual acts” is unconstitu-
tionally vague. The prior adversary hearing generally
required by the Act was therefore a prerequisite to this
prosecution. Consequently, denial of the motion in
arrest of judgment based upon this premise was error,
according to defendant. In Miller v. California, 413 U.S.
15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the phrase
“ultimate sexual acts, normal or perverted, actual or
simulated” were approved as properly constituting the
hard-core sexual conduct which states may regulate.
The standards and definition approved in Miller v. Cali-
fornia are largely the bases of Louisiana’s Obscenity Act.
A widespread use of the phrase has acquired a well-
known and acceptable meaning, readily comprehended
by the average person. As we read the defense brief, it
is conceded that the phrase includes coitus, anal and
oral intercourse. The photographs at issue are ex-
amples of ultimate sexual acts. In the apt words of Mr.
Chief Justice WARREN, defendant in this case was

9a

“plainly engaged in the commercial exploita-
tion of the morbid and shameful craving for
materials with prurient effect. I believe that
the State and Federal Governments can con-
stitutionally punish such conduct. That is all
that these cases present to us, and that is all
we need to decide.” Roth v. United States, 354
U.S., 476 at 496, 77 S.Ct. 1304 at 1315, 1
L.Ed.2d 1498 at 1513.

Therefore, the exception to the requirement of a
prior adversary hearing is couched in constitutionally
acceptable language under approved standards of stat-
utory construction. State v. Skinner, 358 So.2d 280
(La.1978),

Assignments 17 and 20 — Defendant argues that the
trial judge erred in refusing to grant his motion for
directed verdict and motion for a new trial.

The trial was before a jury in which case a directed
verdict is not permitted. La.Code Crim.Pro. art. 778.

Basically, the motion for a new trial adopts the
proposition that the magazine is not obscene. Although
the magazine may contain pictures showing hard-core
sexual conduct, the argument goes, it does not, taken as
a whole, lack “serious literary, artistic, political or
scientific value”. This is so, according to defendant,
because the obscene pictures occur on about fifty per-
cent of the magazine’s pages while the rest of the

10a

publication is devoted to material containing “serious
literary, artistic, political or scientific value.”
Therefore, the magazine does not “taken as a whole”
meet the test of prohibited obscenity set forth in Sec-
tion A(2) of the Act.

The contention is without merit. Conceding arguen-
do that some material in the magazine is of a serious
literary, artistic, political or scientific value, that
material has no rational relationship to that found by
the jury, the trial judge and this Court to be hard-core
sexual depictions. It is the offensive depiction of sexual
conduct itself which must have “serious literary, ar-
tistic, political or scientific value” to merit First Amend-
ment protection. It has often been held that that
obscene material is not protected by the First Amend-
ment. Miller v. California, supra. Placing prohibited
obscene depictions in a magazine, book, or newspaper
which contain other, unrelated articles or pictures of
literary, etc., value does not suffice to make obscenity
legally acceptable. “A quotation from Voltaire in the
flyleaf of a book will not constitutionally redeem an
otherwise obscene publication.” Kois v. Wisconsin, 408
U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).

Assignments 21 and 22 — The defense contends that
the State offered no evidence of community standards
and the only evidence on the subject was offered by
defendant’s expert. This evidence, the defendant
argues, indicates that the average man would not find
“National Screw”, July 1977, to be obscene. Thus,

lla

defendant concludes, there is no evidence in the record
that the controverted magazine lacked serious literary,
artistic, political or scientific value.

The prosecution in an obscenity case need not offer
expert testimony regarding community standards.” [A]
juror is entitled to draw on his own knowledge of the
views of the average person in the community or
vicinage from which he comes for making the required
determination.” Hamling v. United States, 418 U.S. 87, 94
S.Ct. 2887, 41 L.Ed.2d 590 (1974).

And no error occurred because the jury did not
accept the testimony of defendant's expert. It is the
function and prerogative of the jury to evaluate the
evidence and accept or reject what is presented. They
are not bound to accept the opinion of any expert in
weighing the evidence of obscenity.

Assignment 13 — Incompetent “scientific” evidence
was introduced by the State in the course of cross-
examining defendant’s expert witness, the defense
asserts. Because of this, it is claimed, the jury rejected
the testimony of the defendant’s expert witness.

After extensive testimony on direct examination
defendant's expert concluded that “National Screw”,
July 1977, was not obscene, contained material of a
literary, scientific and political value and would not be
considered obscene by the average adult in New
Orleans. On cross-examination he was asked, over

12a

defense objection, if he agreed with a statement of Dr.
Vanderhaig, a prominent psychiatrist which appeared
in the local paper to this effect: “Pornography invites us
to recognize other persons purely as means to our sex-
ual pleasure and exploit them as we exploit animals.”
He answered, “I agree with part of it. Idon’t agree with
the part about exploitation.”

In his per curiam to this assignment of error the trial
judge wrote:

“Defense counsel contends that court erred
in allowing the State to read a quotation to Dr.
Koenig [defendant’s expert] during cross-
examination.

“Cross examination of an expert witness by
reference to medical and other scientific
authorities is generally sanctioned for pur-
poses of testing his knowledge, background
and accuracy and to such ends, quotations
may be read to witnesses from standard
treatises provided that the object is not to get
their contents and opinions of the author
before the jury. State v. Sauls [226 La. 694] 77
So.2d 8 (1955). In the present case the quota-
tion may not have been from a standard
treatise, but from the newspaper a respected
literary source. The article discussed was by a
well-known psychologist and was mentioned
strictly for the purpose of discussing Dr.
Koenig’s views on the subject matter.”

13a

In our view the trial judge correctly explained the
basis for his ruling, and this assignment has no merit.

Assignments 23 and 24 — A claim is made that the
sentence imposed is cruel, excessive and unusual. The
sentence is within the limits prescribed by statute: Not
less than one hundred dollars nor more than one thou-
sand dollars, or imprisoned for not more than one year
or both. La.Rev.Stat. 14:106G.

Sentence was imposed by the trial judge in keeping
with the guidelines set forth in Article 894.1 of the
Code of Criminal Procedure. Compliance with that ar-
ticle averts the possibility of excessive or capricious
sentences. It assures that the sentencing authority is
given adequate information and guidance in sentencing
and provides reviewable standards.

A sentence imposed by a judge within the statutory
limits is generally not subject to review. State v. Pierson,
296 So.2d 324 (La.1974); State v. Polk, 258 La. 738, 247
So.2d 853 (1971).

The trial judge has not abused his discretion in this
sentencing.

For the reasons assigned, the conviction and
sentence are affirmed.

DENNIS, J., concurs and assigns reasons.

14a

TATE, J., dissents and assigns reasons.
DIXON, J., dissents with reasons.
CALOGERO, J., dissents and assigns reasons.
DENNIS, Justice, concurring.

I join in the majority opinion for the reason that the
photographic materials do show “actual ultimate sex-
ual acts” in that they depict “explicit, closeup depiction
of human genital organs so as to give the appearance of
the consummation of ultimate sexual acts.” In my opin-
ion the “ultimate sexual act” is neither ambiguous nor
intended by the legislature to be equated with penetra-
tion. Instead its meaning encompasses all behavior
clearly having no goal other than sexual penetration.
The pictures of imminent oral-vaginal intercourse un-
mistakably give the aj»xearance of the consummation
of ultimate sexual acts. Although actual penetration is
not depicted, any reasonable viewer would co clude
that the scenes are those of the finish or completion,
i.e., the consummation, of the sexual act, and not depic-
tions of mere foreplay which may or may not lead to
sexual penetration.

TATE, Justice, dissenting.
I respectfully dissent.

In my opinion: (1) The intended cunnilingus’s however
obscene, is not the depictions of attempted “ultimate sex-

15a

ual acts” so as to be hard-core pornography within the
meaning of Obscenity Act, which only in such event
permits arrest and conviction without a prior adver-
sary hearing to determine whether the offensive depic-
tion is a criminal offense; (2) If they are, then the stat-
ute is unconstitutionally vague in this respect, concern-
ing as it does First Amendment rights of free press at
issue; (3) In any event, the sentence imposed is ex-
cessive and should be set aside.

DIXON, Justice (dissenting).

I respectfully dissent, believing a prior adversary
hearing is required under the Louisiana statute before
defendant can be prosecuted.

CALOGERO, Justice, dissenting.

I respectfully dissent, being of the opinion that the
material at issue depicts no “ultimate sexual act” and
thus should have been the subject of a prior, adversary
determination of the obscenity issue.

léa

SUPREME COURT
STATE OF LOUISIANA
NEW ORLEANS

UNITED STATES OF AMERICA
STATE OF LOUISIANA

SUPREME COURT OF THE
STATE OF LOUISIANA

New Orleans, 70112

I, Andrew J. Falcon, Deputy Clerk, Supreme Court of
the State of Louisiana, do hereby certify that the Court
took the following action on October 5, 1978, in the
matter entitled STATE OF LOUISIANA v. WARREN
GAMBINO, No. 61,728

“REHEARING REFUSED”

IN WITNESS WHEREOTF, I hereunto sign my name
and affix the seal of the Court aforesaid, at the City of
New Orleans, this the 4th day of December A.D., 1978.

Is) ANDREW J. FALCON
Deputy Clerk
Supreme Court of the
State of Louisiana

[SEAL}

17a
LOUISIANA REVISED STATUTES 14:
§ 106. Obscenity
A. The crime of obscenity is the intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva
or female breast nipples in any location or place open to
the view of the public or the people at large such as a
street, highway, neutral ground, sidewalk, park, beach,
river bank or other place or location viewable
therefrom with the intent of arousing sexual desire.

(2) Participation or engagement in, or manage-
ment, production, presentation, performance, promo-
tion, exhibition, advertisement, sponsorship or display
of, hard core sexual conduct when the trier of fact
determines that the average person applying contem-
porary community standards would find that the con-
duct, taken as a whole, appeals to the prurient interest;
and the hard core sexual conduct, as specifically defined
herein, is presented in a patently offensive way; and the
conduct taken as a whole lacks serious literary, artistic,
political or scientific value.

Hard core sexual conduct is the public portrayal, for
its own sake, and for ensuing commercial gain of:

(a) Ultimate sexual acts, normal or
perverted, actual, simulated or animated,
whether between human beings, animals or
an animal and a human being; or

18a

(b) Masturbation, excretory functions or
lewd exhibition, actual, simulated or animat-
ed, of the genitals, pubic hair, anus, vulva or
female breast nipples; or

(c) Sadomasochistic abuse, meaning ac-
tual, simulated or animated, flagellation or
torture by or upon a person who is nude or
clad in undergarments or in a costume which
reveals the pubic hair, anus, vulva, genitals or
female breast nipples, or the condition of be-
ing fettered, bound or otherwise physically
restrained, on the part of one so clothed; or

(d) Actual, simulated or animated, touch-
ing, caressing or fondling of, or other similar
physical contact with, a pubic area, anus,
female breast nipple, covered or exposed,
whether alone or between humans, animals or
a human and an animal, of the same or op-
posite sex, in an act of apparent sexual
stimulation or gratification; or

(e) Actual, simulated or animated stimula-
tion of a human genital organ by any device
whether or not the device is designed,
manufactured and marketed for such pur-

pose.

(3) Sale, allocation, consignment, distribution, dis-
semination, advertisement, exhibition or display of

19a

obscene material, or the preparation, manufacture,
publication or printing of obscene material for sale,
allocation, consignment, distribution, advertisement,
exhibition or display.

Obscene material is any tangible work or thing
which the trier of fact determines (a) that the average
person applying contemporary community standards
would find, taken as a whole, appeals to the prurient in-
terest; and, (b) depicts or describes in a patently offen-
sive way, hard core sexual conduct specifically defined
in Paragraph (2) above; and (c) the work or thing taken
as a whole lacks serious literary, artistic, political or
scientific value.

(4) Requiring as a condition to a sale, allocation,
consignment or delivery for resale of any paper,
magazine, book, periodical or publication to a
purchaser or consignee that such purchaser or con-
signee also receive or accept any obscene material, as
defined in Paragraph (3) above, for resale, distribution,
display, advertisement or exhibition purposes; or,
denying or threatening to deny a franchise to, or im-
posing a penalty on or against, a person by reason of his
refusal to accept, or his return of, such obscene
material.

(5) Solicitation or enticement of an unmarried per-
son under the age of seventeen years to commit any act
prohibited by Paragraphs (1), (2) or (3), above.

20a

(6) Advertisement, exhibition or display of violent
material. “Violent material” is any tangible work or
thing which the trier of facts determines depicts actual
or simulated patently offensive acts of violence, includ-
ing but not limited to, acts depicting sadistic conduct,
whippings, beatings, torture. and mutilation of the

human body.

B. Lack of knowledge of age or marital status shall
not constitute a defense.

C. No theatre employee or bookstore employee
acting within the course and scope of a bona fide con-
tract of employment wherein such employee is
employed by any person, firm or corporation exhibit-
ing motion pictures or selling books, periodicals or
other published materials pursuant to a license or per-
mit to exhibit or sell the same issued by the State of
Louisiana or any municipality, parish or consolidated
city-parish government therein, shall be guilty of a
violation of this section as a result of his possession, ex-
hibition or sale within the course and scope of such
employment provided such employee has no
managerial duties and has no financial interest in the
possession, exhibition or sale of any materials other
than wages from his said employment, unless there is
no person having managerial duties or a financial in-
terest in the possession, exhibition or sale of obscure!
materials subject to immediate arrest and prosecution.

D. The provisions of this section do not apply to
recognized and established schools, churches,

21a

museums, medical clinics, hospitals, physicians, public
libraries, governmental agencies, quasi-governmental
sponsored organizations and persons acting in their
capacity as employees or agents of such organization.

For the purpose of this paragraph, the following
words and terms shall have the respective meanings
defined as follows:

(1) Recognized and established schools means
schools having a full time faculty and pupils, gathered
together for instruction in a diversified curriculum.

(2) Churches means any church, affiliated with a
national or regional denomination.

(3) Physicians means any licensed physician or psy-
chiatrist.

(4) Medical clinics and hospitals mean any clinic or
hospital of licensed physicians or psychiatrists used for
the reception and care of the sick, wounded or infirm.

E. This section does not preempt, nor shall any-
thing in this section be construed to preempt, the
regulation of obscenity by municipalities, parishes and
consolidated city-parish governments; however, in
order to promote uniform obscenity legislation
throughout the state, the regulation of obscenity by
municipalities, parishes and consolidated city-parish
governments shall not exceed the scope of the

22a
regulatory prohibitions contained in the provisions of
this section.

F. (1) Except for those motion pictures, printed
materials and photographic materials showing actual
ultimate sexual acts or simulated or animated ultimate
sexual acts when there is an explicit, close-up depiction
of human genital organs so as to give the appearance of
the consummation of ultimate sexual acts, no person,
firm or corporation shall be arrested, charged or indict-
ed for any violation of a provision of this section until
such time as the material involved has first been the
subject of an adversary hearing under the provisions of
this section, wherein such person, firm or corporation
is made a defendant and, after such material is de-
clared by the court to be obscene, such person, firm or
corporation continues to engage in the conduct
prohibited by this section. The sole issue at the hear-
ing shall be whether the material is obscene.

(2) The hearing shall be held before the district
court having jurisdiction over the proceedings within
seventy-two hours after receipt of notice by the per-
son, firm or corporation. The person, firm or corpora-
tion shall be given notice of the hearing by registered
mail or by personal service on the owner, manager or
other person having a financial interest in the material;
provided, if there is no such person on the premises,
then notice may be given by personal service on any
employee of the person, firm or corporation on such
premises. The notice shall state the nature of the viola-

23a

tion, the date, place and time of the hearing, and the
right to present and cross examine witnesses.

(3) The state or any defendant may appeal from a
judgment. Such appeal shall not stay the judgment.
Any defendant engaging in conduct prohibited by this
section subsequent to notice of the judgment, finding
the material to be obscene, shall be subject to criminal
prosecution notwithstanding the appeal from the judg-
ment.

(4) Nodetermination by the district court pursuant
to this section shall be of any force and effect outside
the judicial district in which made; and no such deter-
mination shall be res judicata in any proceeding in any
other judicial district. In addition, evidence of any hear-
ing held pursuant to this section shall not be competent
or admissible in any criminal action for the violation of
any other section of this title; provided, however, that
in any criminal action, charging the violation of any
other section of this title, against any person, firm or
corporation that was a defendant in such hearing, in-
volving the same material declared to be obscene under
the provisions of this section, then evidence of such
hearing shall be competent and admissible as bearing
on the issue of scienter only.

G. Whoever commits the crime of obscenity shall
be fined not less than one hundred dollars nor more
than one thousand dollars, or imprisoned in the parish
prison for not more than one year, or both.

24a

When a violation of Paragraphs (1), (2) or (3) of Sub-
section A of this section is with, or in the presence of,
an unmarried person under the age of seventeen years,
the offender shall be fined not more than two thousand
dollars, or imprisoned for not more than five years with
or without hard labor, or both.

LOUISIANA REVISED STATUTES 14:
§ 41. Rape; heterosexual; defined

Heterosexual rape is the act of sexual intercourse
with a female person not the wife of, or judicially
separated from bed and board from, the offender,
committed without her lawful consent. Emission is not
necessary; and any sexual penetration, vaginal or anal,
however slight, is sufficient to complete the crime.

LOUISIANA REVISED STATUTES 14:
§ 41.1 Rape; homosexual; defined

Homosexual rape is the act of anal sexual intercourse
with a male person committed without his consent.
Emission is not necessary, and any anal sexual penetra-
tion, however slight, is sufficient to complete the
crime.

25a

LOUISIANA REVISED STATUTES 14:
§ 89. Crime against nature

Crime against nature is the unnatural carnal copula-
tion by a human being with another of the same sex or
opposite sex or with an animal, except that anal sexual
intercourse between two human beings shall not be
deemed as a crime against nature when done under any
of the circumstances described in R.S. 14:41, 14:41.1,
14:42, or 14:43. Emission is not necessary; and, when
committed by a human being with another, the use of
the genital organ of one of the offenders of whatever
sex is sufficient to constitute the crime.

Whoever commits the crime against nature shall be
fined not more than two thousand dollars, or im-
prisoned, with or without hard labor, for not more than
five years, or both.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2210%3A1. Public record. Not legal advice.