Appendix — Sovereign News Co. v. Corrigan

g1-2926) Ont?

No. __ ”

T CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

>

SOVEREIGN NEWS COMPANY,

Petitioner,

JOHN T. CORRIGAN, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

APPENDIX TO PETITION FOR

A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERNARD A. BERKMAN

J. MICHAEL MURRAY

BERKMAN, GORDON, MURRAY and PALDA .

2121 The Illuminating Building

$5 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorneys for Petitioner

Iit.

VII.

VIII.

TABLE OF CONTENTS

Second Opinion and Judgment

of the Sixth Circuit

(Court of Appeals No.

80-3694) gl OS ES a a a. a

Second Opinion of the

District Court .....-.

Second Judgment Order

of the District Court...

Order of the Supreme Court

Denying Certiorari to

Review The First Judgment

Entered by the Sixth

Caweuie. «© © se peeves

First Opinion and Judgment

of the Sixth Circuit

(Court of Appeals Nos.

78-3064 to 78-3066)... .

First Judgment Order of

the District Court ....

Order of the District

Court Consolidating

Preliminary Injunction

Hearing With Declaratory

Judgment Hearing .....

Opinion and Judgment of

the Sixth Circuit in

Turoso, et al. v.

Cleveland Municipal Cour

et —al., Case

8, 80-3742, 80-3743,

80-3817 and 81-3127,

Entered on the Same Day

A91

A92

A93

A97

Al02

Ix.

Page

As The Second Opinion In

This Case, Deciding The

Same Issue, In Six

Consolidated Habeas ;

Corpus Cases ...... + AlO7

Opinions of the District

Courts in the Habeas

Corpus Cases Reviewed

by the Sixth Circuit

In Its Consolidated

Decision in Turoso

et al. v. Cleve

Municipal Court, et al.

A. District Court's

opinion in the

habeas case assigned

No. 80-3696 in the

Sixth Circuit. ... . A130

B. District Court's

opinion in the habeas

case assigned No.

80-3728 in the Sixth

Casemit. « 6s 6 6 6 « « ARTI

C. District Court's

opinion in the habeas

case assigned No.

80-3742 in the Sixth

Circuit. ..... . . A183

D. District Court's

opinion in the habeas

case assigned No.

80-3743 in the Sixth

Circuit. ...... +. Al89

E. District Court's

opinion in the habeas

case assigned No.

80-3817 in the Sixth

Circuit. ..... . . Al95

F. District Court's

opinion in the habeas

case assigned No.

81-3127 in the Sixth

Carpemit. « « « « 0 0 «6 ABD

X. Opinion of the Ohio Supreme

Court in State v. Burgun,

56 Ohio St.2d 354 T1598} - A213

XI. Order of the Sixth Circuit

Denying Rehearing of Its

Second Decision. .... . A245

XII. First Amendment. .... . A247

XIII. Fourteenth Amendment .. . A248

ZIV. 20 OU.8-C. B133R. « « © « « ABSA

XV. 28 U.S.C. §1343 (As Worded

At The Time The Complaint

In This Case Was Filed). . A253

XVI. 28 U.S.C. §2201 (As Worded

At The Time The Complaint

In This Case Was Filed). . A255

XVII. 42 U.S.C. §1983 (As Worded

At The Time The Complaint

In This Case Was Filed). . A256

XVIII. Ohio Revised Code Section

2907 -Ol. — _ oe — al > > > > A257

XIX. Ohio Revised Code Section

2907.32. > > _ * > > oe > _ A263

VFIQOONL UYINDON “AND JUDGMENT OF

THE SIXTH CIRCUIT

No. 80-3694

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SoverREIGN News Co.,

Plaintiff-Appellee,

v.

Lee C. FALKE, ET AL., ORDER

Defendants,

Roy WARNER, ET AL.,

Defendants-Appellants.

Decided and Filed February 4, 1982.

Before: Epwarps, Chief Circuit Judge, Encex, Circuit Judge,

and Pues, Senior Circuit Judge.

Order of the Court filed February 4, 1982 with concurring

opinion (pp. 4-5) by Encgx, Circuit Judge.

On receipt and consideration of a second appeal in the

above-styled case in which this court, on December 7, 1979,

entered a per curiam opinion, pointing out:

October 31, 1977, holding parts of the Ohio obscenity

statute, R.C. Ohio §$§ 2907.01(F) and 2907.32, to be un-

constitutionally overbroad and vague under Miller v. Cali-

fornia, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

On December 7, 1978, the Supreme Court of Ohio

rendered an opinion in State of Ohio v. Burgun, 56 Ohio

St.2d 354, 384 N.E.2d 255 (1978), holding that the Ohio

Al

2 Sovereign News Co. v. Falke, et al. No. 80-3604

statute when construed to incorporate the guidelines of

Miller vy. California, is valid and constitutional. The first

syllabus, prepared by the Supreme Court of Ohio, is as

R.C. 2907.01(F), which sets forth the definition of

construed to the prescribed

in Miller v. California, 413 U.S. 15, [93 S.Ct. 2607,

37 L.Ed.2d 419].

56 Ohio St.2d at 354, 384 N.E.2d at 255.

Upon consideration of the briefs, oral arguments of

counsel and the entire record, it is ORDERED that

these cases be remanded to the district court for further

consideration in the light of the decision of the Supreme

Court of Ohio in State of Ohio v. Burgun.

Sovereign News Co. v. Corrigan, 610 F.2d 428, 428 (6th Cir.

1979), cert. denied, 447 U.S. 923 (1980).

And on consideration of the briefs, record and the opinion

of the District Court filed after further consideration on re-

mand, Sovereign News Co. v. Falke, No. C77-230 (N.D. Ohio

Sept. 19, 1980); and

Believing that the District Judge has too narrowly con-

strued the opinion of the Ohio Supreme Court in State of Ohio

v. Burgun, supra, and that in fact, said opinion should be

construed as incorporating the guidelines of Miller v. Cali-

fornia, supra, including such interpretative language and ex-

amples as may be found in the majority opinion in the Miller

case.

Now, therefore, the judgment of the District Court grant-

ing plaintiff Sovereign’s claims for declaratory and injunctive

relief is hereby vacated and the case is remanded to the Dis-

trict Court for such other proceedings as may be required.

In so doing, this court recognizes that there is language in

A2

No. 80-3604 Sovereign News Co. v. Falke, et al. 3

the Ohio statute which is in arguable conflict with the United

States Supreme Court's opinion in Miller v. California. In

the event of prosecutions under the Ohio statute, based on state

statutory provisions in conflict with the interpretation of fed-

eral constitutional law contained in Miller v. California, supra,

the standards spelled out by the United States Supreme Court

in its interpretation of the First Amendment will, of course,

apply, as we believe the Ohio Supreme Court has clearly

recognized.

Entered by order of the Court

/s/ JOHN P. HEHMAN

Clerk

4 Sovereign News Co. v. Falke, et al. No. 80-3694

Encex, Circuit Judge, concurring. The majority has today

disposed of by order an issue which has generated at least

three lengthy analyses by the district courts and has seen

four judges of the United States District Court for the North-

ern District of Ohio evenly divided on the constitutionality of

the Ohio statute. Because I believe that the purport of the

order is to hold that the Ohio obscenity statute is not un-

constitutional, at least in the context of the claim of Sovereign

for declaratory and injunctive relief, I concur. Because the

issue is more complex than the order would imply, I believe

it is necessary to provide a more reasoned analysis, given the

importance which has been attached to the issue by the

Supreme Court of Ohio and by the United States district

judges who have been obliged to deal with it. I agree that the

Ohio Supreme Court has clearly endeavored to incorporate

the three guidelines of Miller v. California, 413 U.S. 15 (1973),

as shown by the first syllabus to State of Ohio v. Burgun,

56 Ohio St.2d 354 (1978). I am not, however, so certain that

the Ohio Supreme Court in Burgun has in fact adopted the

two examples of conduct which were described as what a State

statute could define for regulation under Part B of the Miller

standard. The syllabus does not refer to them, and the Su-

preme Court's decision in Burgun appears to affirm convic-

tions where the instructions to the juries did not incorporate

them. Instead, the instructions inchided only the definitions

of obscene material as contained in Ohio Rev. Code § 2907.01

(F), followed by a reading, usually literal, of the three guide-

lines of Miller.

In my opinion, therefore, the Ohio statute is not vague when

read with the guidelines of Miller. Part B of the Miller stan-

dards requires that the work depict or describe “in a patently

offensive way, sexual conduct specifically defined by the ap-

plicable state Jaw.” (Emphasis added).

A plain reading of the Ohio obscenity statute shows that

sexual conduct is, in fact. “specifically defined” in Ohio Re-

vised Code § 2907.01(A):

A4

No. 80-3694 Sovereign News Co. v. Falke, et al. 5

plain in their 42 U.S.C. § 1983 action. Those issues, if still

viable, were not raised before us and there appeared at

oral argument to be some difference of opinion among counsel

whether they still remained alive. The district court on re-

mand can determine that issue.

AS

SECOND OPINION OF THE DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS CASE NO. C77-230

)

COMPANY, )

) JUDGE JOHN M.

Plaintiff, ) MANOS

)

Vv. ) MEMORANDUM OF

) OPINION

LEE C. FALKE, ) [Entered September

et al., ) 19, 1980]

)

Defendants. )

This court decided this matter for

the first time on October 3l, 1977.

Sovereign News Co. v. Falke, 448 F.Supp.

306 (N.D. Ohio 1977). The procedural

history, id. at pp. 316-328, and legal

opinion, id. at pp. 329-408, are set out

in detail in that opinion and will not

be restated here. Suffice to say that

this court found, inter alia, that

substantial portions of the Ohio obscenity

statute, Ohio Revised Code §§2907.01(F)

and 2907.32 were constitutionally infirm

A6

for overbreadth and vagueness. Id. at

pp. 390 et seq. Many of the parties

appealed this court's decision. While

the matter was pending on appeal, the

Ohio Supreme Court, in contradistinction

from the view expressed by this Court,

found the very same statute to be consti-

tutionally unassailable State v. Burgun,

56 Ohio St.2d 354, 384 N.E.2d 255 (1978).

Thereafter, the United States Court of

Appeals for the Sixth Circuit remanded the

matter to this court for further consid-

eration in the light of that intervening

state court decision. Sovereign News Co.

v. Corrigan, 610 F.2d 428 (6th Cir. 1979).

Certiorari to the United States Supreme

Court was sought and denied. The matter

is, therefore, for the second time,

before this court for disposition.

After a careful examination of the

Burgun decision, this court remains

A7

unpersuaded that the Ohio Supreme Court,

either in its holding, or its reasoning,

has ameliorated, in any respect, the

constitutional defects in the statute,

previously identified in this court's

earlier opinion. Indeed, the confusion

created by that opinion, when engrafted

upon the statute as an authoritative

interpretation of the State of Ohio's

highest tribunal, expands the defects

in the statute to such an extent that

this court, in fulfilling its obligation

to protect the Federal Constitution,

is compelled to strike down this law

because of, rather than despite, the

interpretation of Ohio's court of last

resort. The reasons for this court's

decision follow.

The litmus test for determining the

constitutionality of any state law

which makes criminal the distribution

A8

of “obscene” materials appears in the

Supreme Court's decision in Miller v.

California, 431 U.S. 15 (1973).

"(W]e confine the permissible

scope of such regulation to

works w''ich depict or describe

sexual conduct. That conduct

must be specifically defined

by the applicable state law,

as written or authoritatively

construed. A state offense

must also be limited to works

which, taken as a whole, appeal

to the prurient interest in

sex, which portray sexual con-

duct in a patently offensive

way, and which, taken as a

whole, do not have serious

literary artistic, political

or scientific value."

"The basic guidelines for the

trier of fact must be: (a)

whether the ‘average person,

applying contemporary community

standards’ would find that the

work, taken as a whole, appeals

to the prurient interest; (b)

whether the work depicts or

describes, in a patently

offensive way, sexual conduct

specifically defined by the

applicable state law; and (c)

whether the work, taken as

a whole, lacks serious literary,

artistic, political, or

scientific value." Id., at 24

(footnote and citations omitted).

A9

"Under the holdings announced

today, no one will be subject

to prosecution for the sale

or exposure of obscene materials

unless these materials depict

or describe patently offensive

‘hard core’ sexual conduct

specifically defined by the

regulating state law as written

or construed.” Id., at 27.

The Miller decision mandates that a

state obscenity law be limited in its

scope to hardcore sexual conduct. Miller

requires that the hardcore sexual conduct

be defined by the law with specificity.

And Miller demands that the reach of a

state law banning sexually explicit

materials be limited to those works which

appeal to the prurient interest, are

patently offensive and lack serious

literary, artistic, political or scienti-

fic value.

It was against these standards that

this court measured the definition of

obscenity in force in Ohio in its initial

decision in this case. Sovereign News

Al0

Company v. Falke, 448 F.Supp. 306 (N.D.

Ohio 1977). This court concluded then

that, as enacted by the legislature,

Revised Code §§2907.01 and 2907.32,

were substantially overbroad in four

separate respects and were impermissibly

vague, in violation of the First and Four-

teenth Amendments. But prior to taking

the serious step of declaring these

statutes unconstitutional, this court

thoroughly re-examined them to determine

their susceptibility to an authoritative

construction by the state courts that 2

would repair their constitutional defects.

It was only after this court determined

that no reasonable judicial interpreta-

tion of Revised Code §§2907.01 and 2907. 32

could cure their constitutional infirmi-

ties that this court declared them

unconstitutional.

On December 7, 1978, a little over a

year after this court's initial decision

All

in this case, the Supreme Court of Ohio

handed down its decision in State v.

Burgun, 56 Ohio St.2d 354 (1978), reh.

denied, Jan. 17, 1979. In that case, the

Ohio Supreme Court decided four consoli-

dated appeals involving convictions under

the sameobscenity statute which this

court had found to be unconstitutional.

The Ohio Supreme Court rejected arguments

made by the appellants in those cases

that Revised Code §§2907.01 and 2907.32

are unconstitutional under the First and

Fourteenth Amendments due to overbreadth

and vagueness. That court determined

that the constitutional attacks on

Ohio's definition of obscenity could be

brushed aside by construing the statutory

definition in such a manner as to incor-

porate in it the three-pronged test for

obscenity set forth in Miller. That was

done not by interpreting the statutory

language, but by merely adding the Miller

test to the statutory definition. In

Al2

other words, the Ohio Supreme Court left

completely intact the definition of ob-

scenity prescribed by Revised Code §2907.

01 and simply appended the tripartite

Miller formula.

The issue squarely confronting the

court in this case in its present posture,

then, is whether Revised Code §§2907.01

and 2907.32, as construed by the Supreme

Court of Ohio, can be reconciled with

the First and Fourteenth Amendments, as

invessretet by the Supreme Court of the

United States. In discussing this issue

in the pages of this opinion that follow,

this court will first review again what

it believes the constitutional defici-

encies of Ohio Revised Code §§2907.01

and 2907.32 as written to be. It will

then demonstrate that the Supreme Court

of Ohio did not cure the constitutional

infirmities of these statutes by its

decision in State v. Burgun, supra.

Al3

Stated simply, although the Ohio Supreme

Court attempted to perform the “radical

surgery"? which this court held would

be necessary to save the Ohio obscenity

statutes, it did not succeed.

A. As Written, Chio Revised Code

§§2907.01 and 2907.32 Are

Unconstitutionally Overbroad

The Ohio definition of obscenity is

set forth in Ohio Revised Code $2907.01,

which provides, in pertinent part:

As used in sections 2907.01 to

2907.37 of the Revised Code:

(A) “Sexual conduct" means

vaginal intercourse between a male

and female, and anal intercourse,

fellatio, and cunnilingus between

persons regardless of sex. Pene-

tration, however slight, is

sufficient to complete vaginal

or anal intercourse.

(B) “Sexual contact" means

any touching of an erogenous

zone of another, including with-

out limitation the thigh, genitals,

buttock, pubic region or, if the

person is a female, a breast,

for the purpose of sexually arousing

or gratifying either person.

(C) “Sexual activity” means

sexual conduct or sexual contact,

or both.

1 Sovereign News, supra, at 448 F.Supp, 405,

Al4

(F) When considered as a whole,

and judged with reference to

ordinary adults or, if it is

designed for sexual deviates or

other specially susceptible

group, judged with reference to

that group, any material or

performance is “obscene” if any

of the following apply:

(1) Its dominant appeal is

to prurient interest;

(2) Its dominant tendency

is to arouse lust by displaying

or depicting sexual activity,

masturbation, sexual excitement,

or nudity in a way that tends

to represent human beings as

mere objects of sexual appetite;

(3) Its dominant tendency is

to arouse lust by displaying

or depicting bestiality or

extreme or bizarre violence,

cruelty, or brutality;

(4) Its dominant tendency is

to appeal to scatological inter-

est by displaying or depicting

human bodily functions of

elimination in a way that inspires

disgust or revulsion in persons

with ordinary sensibilities,

without serving any genuine

scientific, educational,

sociological, moral or artistic

purpose;

(5S) It contains a series of

displays or descriptions of

sexual activity, masturbation,

sexual excitement, nudity,

bestiality, extreme or bizarre

violence, cruelty, or brutality,

or human bodily functions of

elimination, the cumulative

Al5

effect of which is a dominant

tendency to appeal to prurient

or scatological interest, when

the appeal to such an interest

is primarily for its own sake

or for commercial exploitation,

rather than primarily for a

genuine scientific, educational,

sociological, moral, or artistic

purpose.

(G) “Sexual excitement" means

the condition of human male or

female genitals when in a state

of sexual stimulation or arousal.

(H) “Nudity” means the showing,

representation, or depiction of

human male or female genitals,

pubic area, or buttocks with

less than a full, opaque covering,

or of a female breast with less

than a full, opaque covering of

any portion thereof below the top

of the nipple, or of covered male

genitals in a discernibly turgid

state.

(J) “Material” means any book,

magazine, newspaper, pamphlet,

poster, print, picture, figure,

image, description, motion picture

film, phonographic record, or tape,

or other tangible thing capable of

arousing interest through sight,

sound, or touch.

(K) “Performance” means any

motion picture, preview, trailer,

Play, show, skit, dance, or other

exhibition performed before an

audience.

In its initial decision in this case,

this court found the definition of

Al6

obscenity set forth above to be unconsti-

tutionally overbroad. This court's

holding is synthesized in the following

excerpt from its opinion:

"The court finds that in four

separate instances §2907.01

defines ‘obscenity’ in a manner

that restricts constitutionally

protected expression."

"First: Section 2907.01(F) (1)

(2) (3) (4) and (5) fail to incor-

porate the three-part Miller

test. The Miller test is a con-

junctive three part test, all

parts of which must be satisfied

before the material may be found

obscene...However, under Ohio

Revised Code §2907.01 material

may be found obscene without

the state being required to

prove each of the three parts

of Miller. An example of this

is 2907.01(F) (1) which defines

as ‘obscene,* material whose

*...dominant appeal is to

prurient interest." Under

Subsection (F)(1), the Miller

requirements that (b) the

material be ‘patently offensive'

and (c) that ‘taken as a whole,

it lacks serious literary,

artistic, political or scientific

value," need not be proven by

the state before material can

be found obscene. It is evident,

therefore, that material which

is not patently offensive, and

which has, for example serious

Al7

literary value, may, under

Ohio Revised Code §2907.01(F) (1),

be found to be obscene. The

Court concludes that Ohio R.C.

§2907.01 restricts material

which is not ‘obscene,' making

the statute overbroad."

"Second: Section 2907.01

(F) (3) unconstitut‘tonally

restricts the display or

depiction of extreme cor bizarre

violence, cruelty or brutality.

It is an express holding of

Miller that only material

depicting or describing sexual

conduct may be barred as

being obscene. See, Miller

v. California, supra, 413 U.S.

at 24, 93 S.Ct. 2607. There-

fore,the restrictions placed

on the description or depic-

tion of extreme violence

unconstitutionally restrains

free expression, and the

state is therefore overbroad.

"Third: Section 2907.01

(F) (1) (2) (3) and (5)

unconstitutionally restrict

the display and description

of non-active sexual conduct.

For example, simple nudity,

such as the showing of a

female breast or a male

buttocks, may be considered

obscene under §2907.01(F).

A sexual depiction of that

kind is not hardcore pornography,

and cannot be restricted as

being obscene. ..Therefore

the court finds §2907.01(F)

Als

(1) (2) (3) and (5) are overbroad

in that they restrict non-

harécore sexual conduct.

"Pourth: Section 2907.01

(F) (1) does not define with

the requisite specificity the

sexual acts the description

or depiction of which is

restricted. Subsection (F) (1)

declares that any material whose

‘dominant appeal is to prurient

interest’ is obscene. The

subsection is unconstitutionally

overbroad because it does aot

list the types of sexual conduct

to be restricted, and therefore

may be applied to the depiction

of sexual conduct not subject

to restriction." Sovereign

News Company v. Falke, supra,

at -Supp. 4 ootnotes

omitted).

The overbreadth of Ohio's definition

of obscenity, as written, is as substan-

tial as it is obvious. In the teeth of

express holdings of the Supreme Court in

such cases as Miller and Jenkins v.

Georgia, 418 U.S. 161 (1974), that only

patently offensive depictions of hardcore

sexual conduct may be criminally punished,

the Ohio obscenity law proscribes

depictions of violence, cruelty, brutal-

Al9

ity, semi-nudity and even the touching

of a thigh of another. Despite the

Supreme Court's insistence that a state

law include all three prongs of the test

for obscenity announced in Miller, the

Ohio statute is written in the disjunc-

tive and permits a finding of obscenity

even when one or two prongs of the

Miller test are not satisfied. Revised

Code §§2907.01 and 2907.32, as written,

are substantially and unconstitutionally

overbroad.

B. As Written, Revised Code §§2907.01

. and 2907.32 Are Unconstitutionally

Vague. .

In its initial decision in this case,

this court held that Ohio's definition of

obscenity is unconstitutionally vague,

because it fails to specify the kinds of

sexual depictions which are proscribed.

For example, Revised Code §2907.01(F),

which is written in the disjunctive, provides

A20

in subsection (1) that material is ob-

scene if "[{i)ts dominant appeal is to

prurient interest." That subsection is

impermissibly vague because it altogether

neglects to specify sexual conduct,

the depiction of which may be found

obscene. As this court stated once

before:

"The Supreme Court has stated,

"It is a basic principle of due

process that an enactment is

void for vagueness if its prohi-

bitions are not clearly defined.’

Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S.Ct. 2294,

2298, 33 L.Ed.2d 222 (1972).

See, e.g., Rose v. Locke, 423

U.S. , 96 S.Ct. 243, 46 L.Ed.

2d 185 (1975); Smith v. Goguen,

415 U.S. 566, 572-573, 94 S.Ct.

1242, 39 L.Ed.2d 605 (1974).

Further, statutes which impinge

on the area of freedom of expression

must have a '...greater degree

of specificity than in other

contexts,' Goeguen, supra, 415

U.S. at 573, 54 S.Ct. at 1247,

so as to insure that citizens

will not be ‘chilled' from

exercising their constitutional

right to free expression. See,

e.g., Buckley v. Valeo, 424

i Fae 96 S.Ct. 612, 46 L.Ed.2d

A21

(1) (2) (3) and (5) are overbroad

in that they restrict non-

hardcore sexual conduct.

"Pourth: Section 2907.01

(F) (1) does not define with

the requisite specificity the

sexual acts the description

or depiction of which is

restricted. Subsection (F) (1)

declares that any material whose

‘dominant appeal is to prurient

interest’ is obscene. The

subsection is unconstitutionally

overbroad because it does not

list the types of sexual conduct

to be restricted, and therefore

may be applied to the depiction

of sexual conduct not subject

to restriction.” Sovereign

News Company v. Falke, supra,

at - Supp. ootnotes

omitted).

The overbreadth of Ohio's definition

of obscenity, as written, is as substan-

tial as it is obvious. In the teeth of

express holdings of the Supreme Court in

such cases as Miller and Jenkins v.

Georgia, 418 U.S. 161 (1974), that only

patently offensive depictions of hardcore

sexual conduct may be criminally punished,

the Ohio obscenity law proscribes

depictions of violence, cruelty, brutal-

A22

Ohio was presented with a challenge to

the constitutionality of Revised Code

~§§2907.01 and 2907.32. Specifically,

the appellants in that case urged that

those statutes are unconstitutionally

overbroad and vague. The Ohio Supreme

Court rejected those claims, however,

and sustained the constitutionality of

Revised Cose §§2907.01 and 2907.32.

That court conceded that Ohio's

definition of obscenity, written in the

disjunctive, does not on its face satisfy

the Supreme Court's pronouncement in

Miller v. California, supra, that a state

law must define obscenity as only those

materials which, taken as a whole,

appeal to the prurient interest in sex;

which portray specifically defined hard-

core sexual conduct in a patently

offensive way; and which, taken as a

whole, lack serious, literary, artistic,

political or scientific value. But the

Ohio Supreme Court paid particular

attention to the statement in Miller

that an otherwise unconstitutional

obscenity law would be upheld by the

United States Supreme Court if it were

given an authoritative gloss by the

state's judiciary which narrowed the

statute to constitutionally permissible

parameters. And without any hesitation

or question whatsoever, the Ohio Supreme

Court determined that it would try to

save Ohio's obscenity law from federal

constitutional attack by judicial con-

struction.

Somewhat surprisingly, the Ohio

Supreme Court made this determination

without any discussion of the wisdom or

propriety, from the perspective of state

law and policy, of attempting to rewrite

a legislative enactment. It did not

consider whether the kind of judicial

A24

gloss it was to place on the statute

would constitute an infringement on the

power of the legislature.? It failed

to reflect upon whether or not inter-

preting a criminal statute in a way

which is inconsistent with the statute's

Plain words can be reconciled with the

legislature's intent in enacting the

statute. 3

2 In other contexts, the Ohio Supreme Court

has demonstrated its acquaintance with this

rule of judicial restraint. See State v. Young,

62 Ohio St. 2d 370, 374 (1980),"...a court, in

interpreting a legislative enactment, may not

simply rewrite it...."

3 Numerous other state courts who have compared

their state obscenity laws with Miller have

found them wanting, have struck down the laws

rather than attempt to rewrite them. ABC

Interstate Theatres, Inc. v. State, 325 So.2d

123 (Miss. 1976)("We determined that the enact-

ment of criminal offenses was best left to the

legislature." Id., at 126). Commonwealth v.

Horton, 365 Mass. 164, 310 N.E.2d 316 (1974)

("[WJe decline to undertake the task of trying

to list the specific sexual conduct whose display

or description §284 proscribes. To do so would

constitute a judicial rewriting of that

statute."310 N.E.2d at 321-322); Art Theater

Guild Inc. v. Rhoades, 510 S.W. 2d 358 (Tenn.

A25

Neither did the Ohio Supreme Court

pause to consider this court's conclusion

in its first opinion in this case that

no reasonable judicial interpertation

could repair the several defects in the

3 cont.

1974)("The function of this Court is to

interpret a statute... and we will not and cannot

usurp the prerogatives of the legislature by

supplying essential elements to a statute which

have been omitted by that body." Id., at 261);

State v. Wedelstedt, 213 N.W.2d 652 (lowa 1973)

("No court under the guise of construction may

extend, enlarge, or otherwise change the terms

and meaning of a statute." Id., at 656). State

v. Princess Cinema of Milwaukee, 292 N.W.2d

807 (Wisc. Supreme Court 1980)("The job of

drafting of penal legislation is primarily one

for the legislature. This court is once again

being asked to judicially amend the obscenity

statute to bring it into compliance with the

presently perceived standards emanating from the

United States Supreme Court.... We conclude,

at this time, that this is a determination for

the legislature." Id., at 292 N.W.2d 813-814);

State v. New Horizons, Inc., No. 79SA322,

(Colorado Supreme Court, Aug. 18, 1980) ("While

we recognize a duty, whenever possible, to

authoritatively construe a Colorado statute

to conform to constitutional standards, we

are bound by the clear language of the statute

and must declare it unconstitutional." Id.,

at Slip Op. 12).

A26

statute.4 Rather, the Ohio Supreme Court

immediately turned to its judicial

business: the attempt to save Ohio's

indefensive obscenity law from federal

4

"Section 2907.01 does not lend itself to a

narrowing construction. The statute is so

substantially overbroad that only radical surgery

could save it. See Attwood v. Purcell, 402

F.Supp. 231, 234 (D. Ariz. 1975). For example,

the statute defines the depiction of violence

as ‘obscene.’ See Ohio Revised Code §2907.U1

(F)(3). No reasonable judicial interpretation

of this section can save it from unconstitution-

ally impinging on free expression. Another

example is that the depiction of simple nudity

is defined as obscene. See Ohio Revised Code

§2907.01(F)(5) and (H). No gloss that would

sufficiently narrow this section is reasonably

available. Finally, each section of Ohio

Revised Code §2907.01(F) lacks one or two

parts of the three part Miller test. To

restructure Ohio Revised Code §2907.01(F) into

a conjunctive statute in order to satisfy

the Miller test, when it is a disjunctive

Statute on its face, would require strained

reasoning by an Ohio court. This court cannot

presume Ohio courts will not interpret §2907.01

reasonably. The court concludes that §2907.01

is not readily subject to narrowing by state

court interpretation. See, e.g., Allied Artists

Pictures Corp. v. Alford, 410 F.Supp. 1348,

1356-1357 (W.D. Tenn. 1976); Attwood v. Purcell,

402 F.Supp. 231, 235 (D. Ariz. 1975); Stroud v.

Indiana, Ind., 300 N.E.2d 100 (1973)."

Sovereign News, supra, at 448 F.Supp. 405.

constitutional attack. That court con-

cluded that such a result could be

accomplished without modifying the

statutory langauge itself but by merely

adding to it the three-pronged Miller

formula. In other words, the language

of Revised Code §2907.01 was left

completely intact, but added to the sta-

tutory language at the end was the Miller

formula. The Ohio Supreme Court held as

follows:

"We hold that R.C. °907.01

(F) is neither unconstitutionally

overbroad nor void for vagueness

when it is read in pari materia

with the Miller Seotsten” The

Miller test for defining obscenity

is therefore incorporated into

that statute by an ‘authoritative’

state court construction speci-

fically sanctioned by Miller.

In addition, a close reading of

R.C. 2907.01 in its entirety

shows that the statute is not

vague but rather extremely

precise in defining what conduct

is prohibited. Thus, since

the current statutory definition

has been effectively narrowed to

constitutionally permitted

A28

parameters, the appellants’

proposition of law has no

merit.

"In three of the four appeals

before this court the trial

court adhered to the foregoing

interpretation of Ohio obscenity

law. In each instance the

jury was instructed initially

under the Ohio statute and then

given a ‘narrowing’ instruction

restricting the definition of

obscenity to the test laid

down in Miller. In light of that

interpretation and application

of R.C. 2907.01(F) this proposi-

tion of law is not well-taken and

hereby overruled, except in

State v. Burgun, case No. 77-1144,

where the failure to instruct

on Miller was reversible error."

State Past supra, at 56 Ohio

Bee am c<

This holding was reaffirmed by the Ohio

Supreme Court: in State v. Thomas, 57

Ohio St.2d 71 (1979).

This court, of course, is bound by

the interpretation given by the Ohio

Supreme Court to its own state law.

Brown v. Ohio, 431 U.S. 161, 167 (1977);

Aero Mayflower Transit Co. v. Board of

R. Comrs., 332 U.S. 495, 499-500 (1947);

A29

Kingsly Pictures Corp. v. Regents, 360

U.S. 684 (1959). Accordingly, in view

of the judicial gloss placed upon Revised

Code §2907.01 by the Ohio Supreme Court,

the statute which this court must measure

against federal constitutional commands

is composed of the language of section

2907.01 followed by the language of the

Miller formula. The result can be secn

most vividly by examining the jury

instructions on the question of obscenity

given by the trial court in one of the

three cases affirmed in Burgun, for the

Ohio Supreme Court expressly held that

those instructions constituted a correct

statement of the definition of obscenity

under Revised Code §2907.01, as inter-

preted by the Ohio Supreme Court.

""Obscene,' is defined as

follows: When considered as a

whole and judged with reference

to ordinary adults, or, if it

is designed for sexual deviates

or other specially susceptible

A30

group, judged with reference

to such group, any material or

performance is obscene if

any of the following apply:

(1) Its dominant appeal is

to prurient interest.

(2) Its dominant tendency

is to arouse lust by displaying

or depicting sexual activity,

masturbation, sexual excitement,

or nudity in a way which tends

to represent human beings as

mere objects of sexual appetite.

(3) Its dominant tendency is

to arouse lust by displaying

or depicting bestiality or

extreme or bizarre violence,

cruelty or brutality.

(4) Its dominant tendency

is to appeal to scatological

interest by displaying or

depicting human bodily

functions .of elimination

in a way which inspires

disgust or revulsion in

persons with ordinary

sensibilities, without serving

any genuine scientific,

moral, or artistic purpose.

And the last:

(5) It contains a series of

displays or descriptions of

sexual activity, masturbation,

sexual excitement, nudity,

bestiality, extreme or bizarre

A3l

violence, cruelty, brutality, or

human bodily functions of

elimination, the cumulative

effect of which is a dominant

tendency to appeal to prurient

or scatological interest,

when the appeal to such interest

is primarily for its own sake or

for commercial exploitation, rather

than primarily for a genuine

scientific, educational, socio-

logical, moral, or artistic purpose.

"The Court: In addition

to the statute which I have read

to you, which defines the term

‘obscene,' the following

additional factors must be taken

into your consideration:

According to the United

States Supreme Court, the

basic guidelines for the

trier of facts must be:

‘(A) Whether the average

person, applying contemporary

community standards, would

find that the work, taken

as a whole, appeals to the

prurient interest.

‘(B) Whether the work

depicts or describes, in a

patently offensive way,

sexual conduct specifically

defined by the applicable

state law, and

A32

*(C) Whether the work,

taken as a whole, lacks

serious literary, artistic,

political or scientific

value.'” (Trial transcript,

pp. 529-532 in State v.

Krute, one of the cases

consolidated and decided in

State v. Burgun, supra.

This court concludes that Revised Code

§2907.01, as construed by the Ohio

Supreme Court in Burgun, remains uncon-

Sstitutionally overbroad. Indeed, the

constitutional infirmities of that

statute have been intensified, rather

than relieved, by the Burgun decision. ®

5

Attached as an appendix to this opinion are

the critical jury instructions given in the

three cases affirmed in State v. Burgun, supra.

The Ohio Supreme Court held, in Burgun, supra,

that these instructions constituted correct

recitals of the definition of obscenity under

R.C. 2907.01

6

The decision in Burgun is reminiscent of the

unsuccessful attempt by the Ohio Supreme Court

to save Ohio's death penalty from constitutional

attack by attempting to place a judicial] interpre-

tation on the death penalty statute which would

reconcile it with the latest decisions of the

United States Supreme Court on that subject. Lockett

v. Ohio, 438 U.S. 586, 98 S.Ct. 254, M66- 67, (1978).

A33

This court takes no issue with the

well-established principle that an other-

wise constitutionally deficient statute

may be saved by an authoritative construc-

tion of the state's highest court. Ward

v. Illinois, 431 U.S. 767 (1977). But

in order to save such an infirm legisla-

tive enactment from successful constitu-

tional attack, the juducial gloss must

actually cure the statutory defect. A

mere conclusory determination that the

statutory language meets constitutional

muster will not suffice. Nor will a

construction which reaches only a portion

of the statutory defect be sufficient

to withstand constitutional attack.

In the judgment of this court, the

attempt of the Ohio Supreme Court in

Burgun to provide an authoritative

construction broad enough to overcome

the constitutional deficiency of the

A34

statute, has failed. It failed because

what remains of the statute after such

“authoritative construction" does not

meet federal constitutional standards.

It failed because its announcement that

it was in the process of authoritatively

construing the statute, was not borne

out by its operative performance in its

opinion. It failed because its attempted

construction of a statute designed to

identify an already exquisitely vague

offense so muddied the legal standard by

which guilt was to be ascertained as to

make nonsense out of a criminal law which

is bound to give clear notice of its

content to every citizen.

The several material respects in which

the Burgun decision has failed to shore

up the sagging statute will be considered

below.

A35

1. The Ohio Supreme Court Did

Not Narrow the Statutory

Language Pertaining to the

finds of Depicrions ich

May Be Found Obscene

In Burgun, the Ohio Supreme Court left

the language of Revised Code §2907.01

intact. Instead, it attempted to remedy

the statute by merely tacking onto it

the three-pronged Miller formula, the

second prong of which requires either the

state legislature or the state courts

to define with specificity what kinds of

sexv2l depictions may be found obscene.

The Ohio Supreme Court declined to

specify what kinds of sexual depictions

may be found obscene, however, and

left the langauge of Revised Code §2907.01

completely intact to serve that purpose.

The result is that the Ohio Supreme Court

created a circular definition of obscen-

ity which always leads to and depends

upon the language employed in Revised

Code §2907.01 itself.

A36

The second part of the Millcr test

of obscenity, which has been added to

Revised Code §2907.01 by the Burgun

decision, reads as follows:

"(b) whether the work depicts

or describes in a patently

offensive way sexual conduct

specifically defined by the

by the applicabdie state law;

.++-" Miller, supra, at 413

U.S. 24 (Emphasis added).

It is clear from this language that the

Miller formula is not a self-sufficient

definition of obscenity. On the contrary,

Miller's second prong can be implemented

only by legislation, or judicial inter-

pretation of legislation, which specifi-

cally prescribed what types of sexual

depictions or descriptions may be obscene.

When, as is true of Revised Code §2907.J1,

the law as written lacks the requisite

precision and censors expression which is

constitutionally protected, Miller

requires an authoritative construction

A37

which affirmatively supplies the missing

specificity and which limits the law's

reach to a ban on designated hardcore

pornography.

In the Burgun decision, however, the

Supreme Court of Ohio declined to list

what kinds of sexual depictions may be

found obscene under Revised Code §2907.01.

Instead, the court found that the statu-

tory languace alone and without judicial

interpretation is narrow and specific

enough to comply with Miller's second

prong. The court expressly stated that

Revised Code §2907.01 is"...extremely

precise in defining what conduct is

prohibited.” Burgun, supra at 56 Ohio

St. 361. Accordingly, in adding the

Miller formula to Revised Code §2907.01,

the Supreme Court of Ohio did not alter

in any fashion the law's recital of the

kinds of descriptions or depictions which

may be found obscene in Ohio.

A38

a

It is this feature of the Ohio Supreme

Court's decision in Burgun which readily

distinguishes this case from Ward v.

Illinois, 431 U.S. 767 (1977). In that

case, the petitioner attacked as uncon-

stitutionally vague and overbroad the

obscenity law of the state of Illinois.

Illinois law defines obscenity, in

relevant part, as follows:

"A thing is obscene if, con-

sidered as a whole, its

predominant appeal is to

prurient interest, that is,

a shameful or morbid

interest in nudity, sex

or excretion, and if it

goes substantially beyond

customary limits of candor

in description or represen-

tation of such matters...."

Although this statute, as written, clearly

could not have survived Miller, the

Supreme Court of the United States upheld

its constitutionality because it had been

given a saving judicial construction by

the Illinois Supreme Court.

A39

In numerous prior decisions, the

Illinois Supreme Court had described in

vivid detail the kinds of hardcore sexual

conduct portrayed in materials validly

found obscene under Illinois law. These

decisiamms, the court held, afforded

petitioner Ward adequate notice that his

conduct was clearly within the statute's

prohibition, thereby rendering his vague-

ness challenge to the statute without

merit.

The petitioner's overbreadth argument

was based upon his contention that the

statute was not limited in its reach to

Only a ban on specifically defined hard-

core pornography, as required by Miller v.

California, supra. This argument too

was rejected on the basis of the gloss.

that had been placed on the statute by

the Illinois Supreme Court which narrowed

the statute's scope tothe kinds of sexual

A40

depictions which the court in Miller

listed as examples of what a state

obscenity law could validly reyulate.

In particular, the court pointed to

one case in which the Illinois Supreme

Court had adopted the first two prongs

of the Miller guidelines as part of

Illinois’ obscenity law. In the same

decision, the Illinois Supreme Court had

construed its state law to include, in

place of Miller's third prong, the more

onerous “utterly without redeeming social

value” standard of Memoirs v. Massachu-

setts, 383 U.S. 413 (1966).

Significantly, however, the court

noted that the Illinois obscenity statute

could not survive an overbreadth challenge

merely because the first two prongs of

the Miller test along with the Memoirs

social value test had been incorporated

into the statute. This is because the

second prong of the Miller test expressly

A4l1

commands that the state law, as written

or as construed, specifically define the

kinds of sexual conduct the representation

or depiction of which may be obscene.

Thus, if the Illinois Supreme Court had

merely adopted part (b) of the Miller

guidelines and "...did not go further

and expressly describe the kinds of

sexual conduct intended to be referred

to under part (b) of the Miller

guidelines...",. Ward, supra, at 431 U.S.

775, the statute would have remained

unconstitutionally overbroad.

The court concluded, however, that

the Illinois Senuents Court had, in fact,

added the requisite specificity to its

statute by adopting not just part (b)

of the Miller test but also the follwoing

language from Miller in which the court

gave examples of what a state could

validly regulate under part (b) of the

Miller test:

A42

"We emphasize that it is

not our function to propose

regulatory schemes for the

States. That must await

their concrete legislative

efforts. It is possible,

however, to give a few

Plain examples of what a

state statute could define

for regulation under part

(b) of the standard announced

in this opinion, supra:

‘(a) Patently offensive

representations or descrip-

tions of ultimate sexual acts,

normal or perverted, actual

or simulated.

‘(b) Patently offensive

representations or descrip-

tions of masturbation,

execretory functions, and

lewd exhibition of the

genitals." Miller, supra,

413 U.S. at 25 (footnotes

omitted).

Because the Illinois Supreme Court had

construed the state's obscenity law to

incorporate Miller's second prong and

Miller's explanatory examples, the court

concluded that the statute was not

subject to attack for overbreadth.

Several factors led the court to con-

clude that Illinois' highest court had

A43

incorporated into the state's obscenity

law not just part (b) of the Miller guide-

lines but Miller's explanatory examples

as well. First, Illinois’ obscenity law,

as written, is completely open-ended.

The Illinois Supreme Court must have been

aware of Miller's specificity requirement

and the fact that its state statute did

not, as written, even arguably satisfy

that requirement. Thus, the court must

have intended to incorporate into that

statute which readily lent itself to an

appropriate narrowing interpretation,

Miller's explanatory examples in order

to supply the precision which the statute

obviously lacked.

Second, in a later decision, the

Illinois Supreme Court quoted at length

from Miller, including the passage from

Miller containing the explanatory examples

given in that case. It then noted that

A44

it had incorporated parts (a) and (b) of

the Miller guidelines into the state's

obscenity law in an earlier case and in

so noting that fact referred directly

to the Miller passage it had quoted.

Because the quoted passage from Miller

included Miller's explanatory examples,

the court concluded that the Illinois

Supreme Court had intended to adopt

the Miller examples as well as the guide-

lines themselves.

Finally, the Illinois Supreme Court's

application of the state's obscenity

statute to particular cases reviewed by

the court demonstrated its respect for the

limitations imposed by the First Amend-

ment upon the power of the states to

proscribe expressive materials. In those

cases in which the Illinois Supreme

Court concluded that particular works

could validly be found obscene under the

state's law, the court's detailed de-

A45

scription of the contents of those works

left no doubt that those works vividly

depicted, in a patently offensive way,

numerous acts of sexual intercourse,

masturbation, cunnilingus, fellatio,

lesbian intercourse and other hardcore

sexual conduct. Thus, the decisions of

the Illinois Supreme Court applying the

state's obscenity law to particular cases

demonstrated that court's intention to

narrow the reach of the state law to the

kind of sexual depictions given as

examples in Miller.

For these reasons, the court concluded

that Illinois’ highest court had incor-

porated both the Miller guidelines and

the explanatory examples of Miller into

the state's obscenity law. As so con-

strued and narrowed, Illinois' obscenity

law was not overbroad.

Precisely the opposite is true of

Ohio's obscenity law as interpreted by

A46

its highest tribunal. The evidence is

clear and unmistakable that in Burgun

the Ohio Supreme Court did not intend to

incorporate Miller's explanatory examples

into Revised Code §2907.01 or to narrow

that law's reach to a prohibition on the

depiction or description of the kinds of

sexual conduct identified in Miller's

explanatory examples.

First, unlike the Illinois Supreme

Court, the Ohio Supreme Court has affirmed

findings of obscenity in cases clearly

not involving the kind of sexual depic-

tions given as examples in Miller. State

ex re. Keating v. Vixen, 35 Ohio St.2d

215, 301 N.E.2d 880 (1973), is a particu-

larly apt example, because that case is

cited with approval by the Ohio Supreme

Court in Burgun. The decision in Vixen

was the second one that had been rendered

by the Ohio Supreme Court in that case.

A47

The first time that court considered the

case, it found that the film "Vixen" was

obscene under Revised Code §2905.34, the

predecessor to Revised Code §2907.01,

and affirmed an injunction against the

film's exhibition. State ex rel. Keating

v. Vixen, 27 Ohio St. 2d 278 (1971). That

decision was appealed to the United States

Supreme Court, which vacated the judgment

and remanded the case for further consid-

eration in light of Miller and its

companion cases. A Motion Picture Film

Entitled "Vixen" v. Ohio, 413 U.S. 905

(1973).

On remand, the Ohio Supreme Court found

that definition of obscenity then in force

in Ohio comported, on its face, with

Miller and that the film "Vixen" was,

indeed, obscene. State ex rel. Keating

v. "Vixen", 35 Ohio St. 2d 215, 301

N.E.2d 880 (1973).

The film found by the Ohio Supreme

Court to be obscene, even after Miller

A48

was decided and considered, was described

by the Ohio Supreme Court in its earlier

opinion as follows:

The principal character,

Vixen, is a buxom young wife,

whose “square” husband is a

combination pilot and fishing

guide in the wilderness of

British Columbia. His work

keeps him away from their home

for extended periods of time.

Among the other characters

are Vixen's motorcycle hood

brother, a Canadian Mountie,

with whom Vixen passes the

first few minutes of the film,

a vacationing couple who are

guest-clients of the husband, a

black American whom Vixen

despises and who has fled the

country to avoid the draft,

and an Irish communist who

attempts at gun-point to force

Vixen‘'s husband to fly him

to Cuba. The first four are

objects of Vixen's lechery.

The movie is approximately

70 minutes long, out of which

approximately one-half deals

with incest, adultery, and

lesbianism, which are graphically

portrayed through facial and bodily

expressions indicative of orgasmic

reaction. The remaining one-

half of the movie leads the

viewer through such contemporary

issues as racism, anti-militarism,

communism, and airplane hijacking.

A49

It should be noted that, although

the players are frequentl

_ Shown nude and at fori length,

at no place are eir nita

parts exposed to the leering

ens of the camera.

(Emphasis added; 272 N.E.2d at 139).

The court further noted, at 272 N.E.2d

140:

Assume, hypothetically that

the main character in "The

Sound of Music” performs, during

one scene, an act of sexual

lewdness, could we permit that

part of the film to go unregulated

merely »ecause the producer

had an "eye on the recent

Supreme Court rulings?" The

questions supplies its own answer.

Neither the First Amendment

of the United States Constitution

nor the Ohio Constitution will

be construed as inhibiting the

General Assembly from proscribing

the commercial exploitation

of a purported act of sexual

intercourse.

(Footnotes omitted).

As described by the Ohio Supreme Court,

the film "Vixen" clearly is not the kind

of hardcore pornography which Miller per-

mits the states to censor. Indeed, based

A50

on the description given by the Ohio

Supreme Court, “Vixen” is less explicit

than the film found to be protected by

the First Amendment in Jenkins v.

Georgia, 418 U.S. 161 (1974).

Similarly, the Ohio Supreme Court's

suggestion that “The Sound of Music” could

be rendered obscene by the inclusion of

a single act of sexual lewdness in one

scene completely ignores what has been

basic constitutional law since the 1957

decision of the Supreme Court in Roth v.

United States, 354 U.S. 476 (1957) -

that, in judging whether a work is

obscene, it must be considered as a whole

and in its entirety.

Thus, unlike the decisions rendered

by the Illinois Supreme Court summarized

in Ward, the decisions of the Ohio Supreme

Court have not applied the state's

obscenity statute only to works which

depict the kinds of hardcore sexual con-

AS1

duct given as examples in Miller. For

this reason, initially, this court con-

cludes that in Burgun, which cited the

Vixen decision with approval, the Ohio

Supreme Court did not intend to adopt

the Miller examples or to narrow the Ohio

obscenity statute to the kinds of sexual

depictions set forth in those examples.

Second, unlike Illinois’ obscenity

law, Ohio's law does not lend itself to

an interpretation which incorporates

Miller's explanatory examples. While

subsection (F) (1) of Revised Code §2907.01,

which defines as obscene any material

whose “dominant appeal is to prurient

interest,” is open-ended, subsections

(FPF) (2), (3), (4) and (5) are not. Those

latter subsections define obscenity in

detailed terms which substantially exceed

and cannot be reconciled with the Miller

examples. Revised Code §2907.01, unlike

Illinois' open-ended law, simply is not

AS52

susceptible to an interpretation incorpor-

ating in it the Miller examples. This

fact, along with the Ohio Supreme Court's

statement in Burgun that it believes

Revised Code §2907.01 to be "...extremely

precise in defining what conduct is pro-

hibited,” Id. at 56 Ohio St.2d 361, leads

to the inevitable conclusion that the

court in Burgun did not adopt the Miller

examples.

Third, the Ohio Supreme Court, in

Burgun, quoted a passage from Miller which

contained the three-pronged Miller test

but which excluded the portion of the

Miller decision which set forth examples

of what a state could validly regulate

under the second prong of the Miller

test. By way of contrast, one of the

Illinois Supreme Court decisions upon

which the court in Ward relied to uphold

Illinois’ statute quoted the passage from

A53

Miller which included the explanatory

examples, The court, in Ward, found this

fact to be very significant and concluded

from it that the Illinois Supreme court

had incorporated Miller's explanatory

examples into the state's obscenity law.

Fourth, the jury instructions given in

the three cases in which convictions were

affirmed by the Ohio Supreme Court in

Burgun are most revealing. The affirmance

of those convictions was expressly based

upon the fact that the jury instructions

were given by the trial court in those

cases conformed to the interpretation

given to Revised Code &2907.01 by the

Ohio Supreme Court in Burgun. The Ohio

Supreme Court specifically held that

those instructions represented correct

recitals of the definition of obscenity

under Ohio law, as construed in Burgun.

In each of those three cases, the trial

court read Revised Code §2907.01(F) to

AS4

the jury. It then read to the jury the

three-pronged Miller test without any

reference to Miller's explanatory

examples. Thus, in each of those three

cases the trial court's instruction to the

jury on the second prong of the Miller

formula was substantially as follows:

"...Whether the work depicts

or describes, in a patently

offensive way, sexual conduct

specifically defined by the

applicable state law.” (From

p. 532 of the trial transcript

in State v. Krute, one of the

cases affirmed in Burgun, supra.)

Given the fact that the Ohio Supreme

Court affirmed the convictions in those

three cases on the express ground that

the jury instructions given by the trial

courts correctly stated the definition

of obscenity under Revised Code §2907.01,

as construed in Burgun, the conclusion is

inescapable that the Ohio Supreme Court

did not incorporate into Ohio's obscenity

law Miller's explanatory examples.

A55

As a result, in order to withstand

constitutional attack, Revised Code

§2907.01 must meet, on its face, the

requirement, under the second prong of

the Miller formula, that a state obscenity

law must be limited to a ban on the

representation or description of specifi-

cally defined hardcore sexual conduct.

As will be seen, however, Revised Code

§2907.01 does not satisfy the constitu-

tional requirement.

2. Under Revised Code §2907.01,

As Construed by the Ohio

Supreme Court, Non-Hardcore

Sexual Depictions May Still

Be Found Obscene.

Even after Burgun, subsections (F) (1),

(2), (3) and (5) of Revised Code §2907.01,

which remain in effect, still prohibit

descriptions and depictions of non-hard-

core sexual conduct. For example, simple

nudity may still be found obscene under

Revised Code §2907.101. And subsection

AS6

(H) of Revised Code §2907.01 defines

“nudity” so broadly that it includes a

depiction of a woman wearing an evening

dress which exposes any portion of her

breast “below the top of the nipple” and

the showing of a male or female buttocks

with "less than a full, opaque covering." |

Similarly, a depiction of “sexual activi-

ty” includes “sexual contact,” which in

turn includes a depiction or description

of the mere touching by one person of

the thigh of another person during a love

scene. See Revised Code §2907.01(B) and

(c). The decisions of the Supreme Court

in Miller v. California, supra, and

Jenkins v. Georgia, 418 U.S. 153, 162

(1974), make it clear that a state is

constitutionally prohibited from defining

obscenity so broadly. Because, under

Burgun, in contrast to the decisions of

the Illinois Supreme Court noted in

Ward, depictions of nudity, semi-nudity,

A57

touching by one person of the thigh of

another and other non-hardcore sexual

depictions may still be found obscene

under Ohio's law, Revised Code §2907.01

remains substantially and unconstitution-

ally overbroad,

Indeed, a recent decision by the Court

of Appeals of the First Appellate District

of Ohio reveals, in an ironic way, the

failure of the Burgun decision to deal

with the overbreadth of Revised Code

§2907.01 and the confusion created by the

Burgun decision for the lower courts

which must deal with the always difficult

issues raised in obscenity prosecutions.

State v. Sovereign News Company, No.

C77676 (Hamilton County, Ohio, Court of

Appeals, September 3, 1980). In that

decision, the court rejected a challenge

to the constitutionality of Ohio's

obscenity statute because it felt bound

by the Burgun decision. Yet it reversed

a conviction under the statute because

it found the search warrant used to

obtain the charged materials to be over-

broad, in violation of the Fourth

Amendment, since the warrant contained the

same statutory language and thereby

impermissibly authorized seizure of

materials protected by the First Amend-

ment. The court stated as follows:

"Preliminarily, it is fair to

note that the instant search

warrant presents at least one

feature of specificity not

found in [Stanford v. Texas,

379 U.S. 476 (1965); Marcus v.

Search Warrants, 367

T1961); Lo-Ji Sales, Inc. v.

New York, 4427 U.S. 519 (1979) }:

here the materials to be seized

were qualified as or limited

to those depicting sexual

activitiy,' a concept arguably

more precise and specific than

‘obscene.’ Unfortunately,

the term ‘sexual activity’ is

a phrase of art in Ohio,

ye rae a specific meaning

defined by statute. Thus,

R.C. 2907.01 defines the

phrase as follows:

"(C) ‘Sexual activity’ means

sexual conduct or sexual contact,

or both.

In turn, the same statute defines

those two latter concepts in the

following language:

"(A) ‘Sexual conduct’ means

vaginal intercourse between a

male and female, and anal inter-

course, fellatio, and cunnilingus

between persons regardless of

sex. Penetration, however slight,

is sufficient to complete

vaginal or anal intercourse.

"(B) ‘Sexual contact’ means

any touching of an erogenous zone

of another, including without

limitation the thigh, genitals,

buttock, pubic region, or, if

the person is a female, a

breast, for the purpose of

sexually arousing or gratifying

either person.

"While a serach warrant limited

to material depicting ‘sexual

conduct,' as defined above, could

arguably meet Fourth Amendment

standards of specificity, it is

difficult to conceive that

depictions of ‘sexual contact'

would invariably or even usually

constitute obscenity. Certainly

it is possible to imagine

depictions of a R.C. 2907.01(B)

‘touching' which meet the Miller

v. colitornia, supra, criteria;

u S equally possible to

imagine quite innocent, or at

least non-pornographic, represen-

tations of such tactile encounters."

(Slip Op. at 12-13; footnotes

omitted.)

As a result of Burgun, the court had

to reject the claim that Revised Code

§2907.01 represents an unconstitutional

restriction on expression which is

constitutionally protected. Yet it struck

down a search warrant on the ground that

the very same statutory language could

not be used in a search warrant without

rendering the warrant overbroad on the

ground that it authorizes seizure of

constitutionally protected materials.

This decision by an intermediate

state appellate court serves to illus-

trate how the Ohio Supreme Court in

Burgun has aggravated, rather than solved,

the constitutional problems which per-

meate Revised Code §2907.01.

3.

In Burgun, the Ohio Supreme Court left

intact the statutory language which

prohibits depictions of extreme or

bizarre violence, cruelty or brutality

found in subsections (F)(3) and (5) of

Revised Code §2907,01. That court did

not construe, interpret or limit that

language in any way. The statute

remains constitutionally overbroad,

therefore, because it restricts expres-

sion protected by the First Amendment.

As this court stated in its first

decision in this case:

"...It is an express holding of

Miller that only material

depicting or describing sexual

conduct may be barred as being

obscene. See Miller v. California,

supra, 413 U.S. at 24, 93 8.Ct.

. Therefore, the restrictions

placed on the description or

depiction of extreme violence

unconstitutionally restrain

free expression, and the

statute is therefore overbroad."

oe reese at 448 F.Supp.

mp sett added) .

In Burgun, the Ohio Supreme Court

determined that Revised Code §2907.01(F)

is sufficiently precise in defining what

depictions may be found obscene. That

court, therefore, found it unnecessary

to add any further specificity to the

statute. Instead, it merely added at

the end of the statute the Miller guide-

lines while leaving Revised Code §2907.01

(F) intact because, in its view, the

statute itself is adequate to satisfy

the command of Miller that a state law

must be limited in its scope to materials

which describe or depict "...sexval

conduct specifically defined by the appli-

cable state law." Miller, supra, at 413

U.S, 24.

At the same time, the Ohio Supreme

Court recognized that Revised Code §2907.01

A63

(F) is written in the disjunctive. In

Burgun, the Ohio Supreme Court did nothing

to change this basic statutory structure.

Thus, even after Burgun, each one of the

five subsections of Revised Code §2907.01

(F) defines independently what kinds of

depictions are within the statute's reach.

At most, then, the Burgun decision stands

for the proposition that material may be

found obscene in Ohio if it satisfied

the first and third prongs of the Miller

test and any one of the five definitions

set forth in Revised Code §2907.01(F),

each of which, the Ohio Supreme Court

determined, is adequately precise to

meet the specificity requirement set

forth in part (b) of the Miller

guidelines.

But subsection (1) of the Revised Code

2907.01(F) defines as obscene any

material whose “dominant appeal is to

prurient interest.” That subsection

A64

altogether fails to define the sexual

conduct the depiction of which is within

its inhibition. The subsection is,

therefore, unconstitutionally vague. Its

open-ended nature also renders it

impermissibly overbroad because it may

be applied to restrict sexual depictions

protected by the First Amendment.

D. As Construed by the Ohio Supreme

Court, Revised Code §2907.0

Remains Unconstitutionally Vague.

The Ohio Supreme Court specifically

declined to specify the kinds of sexual

conduct whose depiction may be found

obscene under Revised Code §2907.01.

Instead, that court concluded that the

statute on its face is sufficiently

precise to overcome a vagueness challenge.

This court came to an opposite conclusion

in its first opinion in this case. After

careful reconsideration in the light of

Burgun, this court remains convinced that

A65

Revised Code §2907.01 is unconstitution-

ally vague. Certainly, the addition of

the Miller test at the end of the statute,

without the Miller examples, does not add

the necessary specificity to save the

statute. For example, subsection (1)

of the Revised Code §2907.01(F) remains

completely open-ended and nowhere speci-

fies the sexual depictions proscribed

by its terms. Revised Code §2907.0l,

therefore, remains unconstitutionally

vague even after Burgun.

In fact, the Burgun decision has

exacerbated, rather than alleviated, the

vagueness of Revised Code §2907.01. By

tagging onto the end of a five-part

disjunctive statute, by judicial amend-

ment, the three-pronged conjunctive test

of Miller, the Ohio Supreme Court has

created more, rather than less, confusion

in this already exquisitely vague area.

A66

The confusion is heightened by the

fact that the Miller guidelines are

altogether inconsistent with the statutory

language to which those guidelines are

now appended. Prosecutors, policemen

and juries are now informed that the State

of Ohio defines obscenity in one way but

that the Supreme Court of the United

States defines it in another way. It is

left to them to decide, on an ad hoc

basis, if andhow these inconsistent sets

of criteria can be harmonized. And

potential violators of this new mixture

of statutory and constitutional law have

no way of knowing by which of two

different tests the lawfulness of their

conduct will be measured.

Revised Code §2907.01, as construed

by the Ohio Supreme Court, is unconsti-

tutional under the First and Fourteenth

Amendments due to vagueness.

CONCLUSION

For all of these reasons, this court

finds that the Ohio obscenity statutes

remain, even after the Burgun decision,

void for overbreadth and vagueness.

There are those who will complain that

this federal court has not paid suffici-

ent deference to the decision of a high

state tribunal. Nothing could be further

from the truth. Our scheme of federalism

quite properly permits - in fact,

requires - a state court to interpret

its own legislation, and measure it

against federal as well as state consti-

tutional standards. It is altogether

appropriate that state courts do so.

Because this court feels so strongly that

this legitimate state judicial function

should be encouraged, it has spent many

hours examining the Burgun opinion in an

attempt to avoid the disparate result

reached here.

A68

But the federal court system has its

own responsibility, quite apart from the

state's obligation to perform its consti-

tutional duty. The federal court is

obliged to protect the federal rights

of all within its reach. That obligation

is intensified when the state courts have

failed to do so.

This court does not believe that the

federal court system need wither away

so that the state legal system may sur-

vive. The dual legal systems are partners

in the business of protecting the rights

of their constituents. A proper approach

to federalism lies in the recognition of

the fact that a citizen is entitled to

have his liberty protected by both the

state in which he resides and the nation

to which he pledges his allegience, and

in the unwerstanding that when one

sovereignty fails to provide him justice,

A69

he may look to the other for the relief

which the Constitution guarantees him.

With this understanding of its respon-

sibility, this court cannot rubberstamp

the result reached by the Ohio Supreme

Court in Burgun.

In the vague area of obscenity, the

Burgun decision has further obfuscated

an already unclear law, and has guaran-

teed that future prosecutions under it

will be fundamentally suspect. Nor has

that overbroad legislative enactment been

brought, by judicial construction, within

constitutionally acceptable limits.

This court can neither ignore these

salient consequences, nor its own

constitutional duty. It therefore finds

Ohio Revised Code §§2907.01 and 2907.32,

as construed by State v. Burgun, to be

void for overbreadth and vagueness.

IT IS SO ORDERED,

isf John M. Manos

UNITED STAT cT

JUDGE

A70

IN THE CLEVELAND MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

Case No. 76 CR 627

Court of Appeals No. 36264

Supreme Court No. 77-1154

CITY OF CLEVELAND

vs.

THOMAS BAYLESS

JURY CHARGE

Excerpt from Transcript of Proceedings

A71

the mind of the defendant, an awareness

or belief that he did participate in

presenting an obscene performance where

an admission price was charged.

"Performance" means any motion picture,

preview, trailer, play, show, skit,

dance or other exhibition performed

before an audience.

“Obscene” means when considered as a

whole and judged with reference to

ordinary adults, or, if it is designed

for sexual deviates or other specially

susceptible group, judged with reference

to such a group, any material or perfor-

mance is “obscene” if the following

apply:

(1) Its dominant appeal is to

the prurient interest;

(2) Its dominant tendency is to

arouse lust by displaying or depicting

sexual activity, masturbation, sexual

excitement or nudity in a way which tends

A72

to represent human beings as mere objects

of sexual appetite;

(3) Its dominant tendency is to

arouse lust by displaying or depicting

bestiality or extreme or bizarre violence,

cruelty or brutality;

(4) Its dominant tendency is to

appeal to scatological interest by dis-

Playing or depicting human bodiy functions

of elimination in a way which inspires

disgust or revulsion in persons with

ordinary sensibilities, without serving

any genuine scientific, educational,

sociological, moral or artistic purpose;

(5) It contains a series of

displays or descriptions of sexual

activity, masturbation, sexual excitement,

nudity, bestiality, extreme or bizarre

violence, cruelty or brutality or human

bodily functions of elimination, the

cumulative effect of which is dominant

tendency to appeal to prurient or

A73

scatological interest, when the appeal to

such interest is primarily for its own

sake or for commercial exploitation,

rather than primarily for a genuine

scientific, educational, sociological,

moral or artistic purpose.

In addition to the statute which I

have read to you which defines the term

obscene, the following additional factors

must be taken into your consideration.

According to the United States

Supreme Court, the basic guidelines for

the tryor of the fact -- and that is

the jury -- must be:

(A) Whether the average person,

applying contemporary community standards

would find that the work, taken as a

whole, appeals to the pruricnt interest;

(B) Whether the work depicts or

describes, in a patently offensive way,

sexual conduct specifically defined by the

applicable State law; and

A74

(C) Whether the work, taken as a

whole, lacks serious literary, artistic,

political or scientific value.

All three of these factors must be

considered by you, and in order to find

that the material involved in this matter

is obscene, you must find that all three

factors are present in this case.

"Sexual activity” means sexual conduct

or sexual contact, or both.

"Sexual conduct” means vaginal inter-

course between a male and female, and

anal intercourse, fellatio and cunnilingus

between persons regardless of sex.

Penetration, however slight, is suffici-

ent to complete vaginal or anal inter-

course.

“Fellatio” means sexual activity

committed with a male sexual organ with

the mouth.

"Cunnilingus" means sexual activity

committed with the mouth on the female

A75

sexual organ.

"Sexual excitement" means the condi-

tion of human male or femal genitals

when in a state of sexual stimulation

or arousal.

"Nudity" mans the showing, represen-

tation or depiction of human male or

femal genitals, pubic area or buttocks

with less than a full, opaque covering

or of a female breast with less than a

full, opaque covering of any portion

thereof below the top of the nipple, or

of covered male genitals in a discernibly

turgid state.

Now, you must not discuss or consider

the subject of punishment. Your duty is

confined to the determination of the guilt

A76

IN THE CLEVELAND MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

Case No. 75 CRB 17311

Court of Appeals No. 36368

Supreme Court No. 77-1155

STATE OF OHIO

vs.

FRANK TUROSO

JURY CHARGE

Excerpt from Transcript of Proceedings

A77

The second is the word or term obscene.

The third is the work participant or

participation, and the fourth is admis-

sion.

I am now going to define for you each

of these four terms.

When I say admission to you it is

meant to mean admission charge. We will

get to that later.

The first item I am going to define

for you as a matter of law which you are

obliged to follow is, knowledge, knowledge

of the character and content. What does

the word knowledge mean? This is what

it means: A person acts knowingly

regardless of his purpose when he is

aware that his conduct will probably

cause a'certain result or will probably

be of a certain nature. A person has

knowledge of the circumstances when he

is aware that such circumstances probably

exist.

A78

The next item that I am going to

define for you is the word or term

"obscene." This is what the word or

term in this case means: When considered

as a whole and judged with reference to

ordinary adults, or if it is designed

for sexual gratification or other

specially susceptible groups judged with

reference to such group any material or

performance is obscene if any of the

following apply. Now, there is five of

them.

Number one, “its dominant appeal is

to prurient interests ;"

Number two, “its dominant tendency is

to arouse lust by displaying or depicting

sexual activity, masturbation, sexual

excitement, or nudity in a way that

tends to represent human beings as mere

objects of sexual appetite;”

Number three, "its dominant tendency

is to arouse lust by displaying or

a79

depicting bestiality or extreme or

bizarre violence, cruelty, or brutality;”"

Number four, “its dominant tendency

is to appeal to scatological interest by

displaying or depicting human bodily

functions of elimination in a way that

inspires disgust or revulsion in persons

with ordinary sensibilities, without

serving any genuine scientific, educa-

tional, sociological, moral, or artistic

purpose ;"

Fifth and last, “it contains a series

of displays or descriptions of sexual

activity, masturbation, sexual excitement,

nudity, bestiality, extreme or bizarre

violence, cruelty, or brutality, or

human bodily functions of elimination,

the cumulative effect of which is a

dominant tendency to appeal to prurient

or scatological interests, when the appeal

to such an interest is primarily for its

own sake or for commercial exploitation,

rather than primarily for a genuine

scientific, educational, sociological,

moral or artistic purpose."

That, ladies and gentlemen of the

jury, is the definition of the term

obscene which you are obliged to follow.

Now, I have defined eytee knowledge.

I have defined for you obscene. There

are two more of the four essential

elements.

MR. YASINOW: Your Honor.

THE COURT: Yes.

(Discussion had off the record.)

THE COURT: In a moment I am going

to define for you the word participation

and the word admission pertaining to

admission charge, but I am now going to

clarify for you further the term obscene.

I want you to know the following: In

addition to the statute I have read to

you which defines the term obscene, the

A8l

following additional factor must be taken

into your consideration. According to

the United States Supreme Court, the

basic guidelines for the trier of the

fact must be “whether the average person

applying contemporary community standards

would find that the work taken as a whole

appears to the prurient interest, whether

the work depicts or describes in a patent-

ly offensive way sexual conduct speci fi-

cally defined by the applicable statute

law, whether the work taken as a whole

lacks serious literary, artistic, poli-

tical or scientific value.

The area from which the contemporary

community standards is to be judged is

that of the limits of the City of Cleve-

land,

What does the work “participant” mean,

or “participation”? It is simply the

understanding that an ordinary reasonable

A82

following additional factor must be taken

into your consideration. According to

the United States Supreme Court, the

basic guidelines for the trier of the

fact must be “whether the average person

applying contemporary community standards

would find that the work taken as a whole

appears to the prurient interest, whether

the work depicts or describes in a patent-

ly offensive way sexual conduct speci fi-

cally defined by the applicable statute

law, whether the work taken as a whole

lacks serious literary, artistic, poli-

tical or scientific value.

The area from which the contemporary

community standards is to be judged is

that of the limits of the City of Cleve-

land,

What does the work “participant” mean,

or "participation"? It is simply the

understanding that an ordinary reasonable

A83

person would have of the word participant

or participation.

What does the word "admission" as it

might apply to admission charge, mean?

Again, it is the same thing. It is the

understanding which an ordinary reason-

able person would have of the term

admission or admission charge.

You may not find the defendant guilty

unless you find beyond a reasonable

doubt that on or about July 3rd, 1975

Mr. Frank Turoso had knowledge of the

content and character of the particular

film which you have seen presented here

in Court.

A84

IN THE CLEVELAND MUNICIPAL COURT

CUYAHOGA COUNTY, OHIO

Case No. 75 CRB 14419

Court of Appeals No. 36092

Supreme Court No. 77-1279

STATE OF OHIO

vs.

WILLIAM KRUTE

JURY CHARGE

Excerpt from Transcript of Proceedings

is charged."

The essential elements of this crime,

each of which the State, the prosecution,

must prove beyond a reasonable doubt,

are as follows: Knowledge. It is

defined as follows: A person acts know-

ingly, regardless of his purpose, when

he is aware that his conduct will proba-

bly cause a certain result or will

probably be of a certain nature. A

person has knowledge of circumstances

when he is aware that such circumstances

probably exist.

The next element that must be proved

by the State beyond a reasonable doubt is

the word "obscene."

"Obscene," is defined as follows:

When considered as a whole and judged

with reference to ordinary adults, or,

if it is designed for sexual deviates or

other specially susceptible group, judged

A86

with reference to such group, any material

or performance is obscene if any of the

following apply:

(1) Its dominant appeal is to

prurient interest.

(2) Its dominant tendency is to

arouse lust by displaying or depicting

sexual activity, masturbation, sexual

excitement, or nudity in a way which

tends to represent human beings as mere

objects of sexual appetite.

(3) Its dominant tendency is to

arouse lust by displaying or depicting

bestiality or extreme or bizarre violence,

cruelty or brutality.

(4) Its dominant tendency is to

appeal to scatological interest by

displaying or depicting human bodily

functions of elimination in a way which

inspires disgust or revulsion in persons

with ordinary sensibilities, without

serving any genuine scientific, educa-

A87

tional, sociological, moral, or artistic

purpose.

And the last:

(5) It contains a series of

displays or descriptions of sexual

activity, masturbation, sexual excitement,

nudity, bestiality, extreme or bizarre

violence, cruelty, or brutality, or human

bodily functions of elimination, the

cumulative effect of which is a dominant

tendency to appeal to prurient or

scatological interest, when the appeal

to such interest is primarily for its

own sake or for commercial exploitation,

rather than primarily for a genuine

scientific, educational, sociological,

moral or artistic purpose.

The authorized elements of this crime

which the State of Ohio--

MR. YASINOW; Your Honor, may I?

The COURT: Yes.

(Thereupon, discussion was had between

Court and counsel, out of the hearing of

the jury, and off the record:)

THE COURT: In addition to the

statute which I have read to you, which

defines the term “obscene,” the following

additional factors must be taken into

your consideration:

According to the United States

Supreme Court, the basic guidelines

for the trier of facts must be:

"(A) Whether the average person,

applying contemporary community

standards, would find that the

work, taken as a whole, appeals to

the prurient interest.

"(B) Whether the work depicts

or describes, in a patently offensive

way, sexual conduct specifically

defined by the applicable State law,"

"“(C) Whether the work, taken as

a whole, lacks serious literary,

artistic, political or scientific

value."

The area from which the contemporary

community standard is to be judged is

that of the limits of the City of

Cleveland.

There are two other terms or clements

SECOND JUDGMENT ORDER OF THE DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS CASE NO. C77-230

)

COMPANY, )

) Judge John M,

Plaintiff, ) Manos

)

Vv. )

) ORDER

LEE C. FALKE, ) TEntered Sept. 19,

et al., ) 1980)

)

Defendants. )

Pursuant to the Memorandum of Opinion

issued in the above-captioned case on

this date, the Court finds Ohio Revised

Code §§2907.01 and 2907.32 to be void

for overbreadth and vagueness.

IT IS SO ORDERED:

{ss John M. Manos

District Judge

A91

{Order of the Supreme Court Denying

Certiorari To Review First Opinion of

the Sixth Circuit]

Roy WARNER, et al., petitioners, v.

SOVEREIGN NEWS COMPANY, et

al. No. 79-1671

Facts and opinion, Sovereign News

Co v. Falke, D.C., 448 F.Supp. 306;

Sovereign News Company v. Corrigan,

610 F.2d 428.

Petition for writ of certiorari to

the United States Court of Appeals for

the Sixth Circuit.

June 16, 1980. Denied.

A92

FIRST OPINION AND JUDGMENT

OF THE SIXTH CIRCUIT

SOVEREIGN NEWS COMPANY,

Plaintiff-Appellee,

John T. CORRIGAN, Prosecuting Attor-

ney, et al., Defendants-Appellants.

Nos. 78-3064 to 78-3066.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 4, 1979.

Decided Dec. 7, 1979.

Rehearing and Rehearing En Banc

Denied Jan. 22, 1980.

Appeal from the United States District

Court for the Northern District of Ohio;

John M. Manos, Judge.

Timothy J. Armstrong, Asst. Pros. Atty.,

Cleveland, Ohio, for John T. Corrigan.

Bernard A. Berkman, Berkman, Gordon,

Kancelbaum & Levy, Cleveland, Ohio, for

Sovereign News Co.

A93

James A. Brogan, Asst. Prosecutor, Gary

W. Crim, Dayton, Ohio, for Lee C. Falke.

Thomas V. Martin, Asst. Atty. Gen., Co-

lumbus, Ohio, for amicus curiae Atty Gen.

of Ohio.

Jack M. Schulman, Director of Law, City

of Cleveland, Donald F. Black, Bruce A.

Taylor, Bertsch, Edelman & Fludine Co.,

LPA, Cleveland, Ohio, for Cleveland Police

Officers.

Before EDWARDS, Chief Judge, KEITH,

Circuit Judge, and PHILLIPS, Senior Cir-

cuit Judge.

PER CURIAM.

These consolidated appeals are from the

decision of the district court reported

at 448 F.Supp. 306, rendered October 31,

1977, holding parts of the Ohio obscenity

statute, R.C. Ohio §§2907.01(F) and

2907.32, to be unconstitutionally over-

A94

broad and vague under Miller v. California,

413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d

419 (1973).

On December 7, 1978, the Supreme Court

of Ohio rendered an opinion in State of

Ohio v. Burgun, 56 Ohio St.2d 354, 384

N.E.2d 255 (1978), holding that the Ohio

statute when construed to incorporate

the guidelines of Miller v. California,

is valid and constitutional. The first

syllabus, prepared by the Supreme Court

of Ohio, is as follows:

R.C. 2907.01(F), which sets forth

the definition of “obscenity,”

is neither unconstitutionally

overbroad nor void for vagueness

when it is authoritatively .

construed to incorporate the

guidelines prescribed in Miller

v. California, 413 U.S. 15, [93

S.Ct. 2607, 37 L.Ed.2d 419].

56 Ohio St.2d at 354, 384 N.E.2d at 255.

Upon consideration of the briefs, oral

arguments of counsel and the entire record,

it is ORDERED that these cases be remanded

to the district court for further consid-

eration in the light of the decision of

the Supreme Court of Ohio in State of

Ohio v. Burgun.

FIRST JUDGMENT ORDER OF THE DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS CO.

2075 East 65th St.

Cleveland, Ohio

CASE NO. C77-230

Plaintiff,

v.

)

)

)

)

)

)

LEE C. FALKE )

Prosecuting Attorney)

for Montgomery )

County, Ohio )

41 N. Perry Street )

Dayton, Ohio )

)

and )

)

)

)

)

)

)

)

)

)

)

E.R. ROBINSON and

C.L. DALRYMPLE

c/o Department of

Police

City of Dayton

and

JOHN T. CORRIGAN Judge John M.

Prosecuting Attorney) Manos

for Cuyahoga County,) [Entered Oct. 3l,

Ohio 1977)

Justice Center

1200 Ontario Street

Cleveland, Ohio

— ee ee ee ee ee

and

A97

ROY WARNER, L.

THOMPSON, JOHN

CRAWFORD, ARCHIE

CATAVOLOS, KENNETH

WHITE, WILLIAM POE,

RICHARD B. MILLETT,

JOHN H. DEVINE,

JAMES LYNSKY,

VINCENT G. KRAWULSK

CARL DELAU, ANDREW

S. VANYO, JAMES

KENNELLEY, ROBERT

J. CERMAK, HENRY

YISHA, GREGORY KUNZ,

B. JONES, RICHARD

McINTOSH, JOHN

MCNAMARA, EDWARD C.

LOUCAS, SAMUEL

HENNIE, CHARLES

BERKEY, ROBERT

O'BRIEN

c/o Department of

Police

City of Cleveland

eee OF

and

the following

members of the

Police Department of)

the City of )

Cleveland, Ohio, )

whose full names are)

unknown at this time)

KAMINSKI, BANYON, )

McGREER (Badge No. )

1583), and JOHN DOE )

I, JOHN DOE II and

)

)

me ee ee ee ee ee ee ee ee ee ee ee ee

JOHN DOE III,

Defendants.

A98

JUDGMENT ORDER

Based on the Memorandum of Opinion

filed in this case today, which Memoran-

dum of Opinion is fully integrated in

this Judgment Order, the court orders

that:

(1) It will abstain, under the doctrine

of Younger v. Harris, from deciding

Sovereign's declaratory judgment and

preliminary injunction claims against

the Montgomery County defendants, Lee

Falke, E.R. RO6binson, and C. L. Dalrymple,

and therefore, the court dismisses those

claims against those defendants;

(2) The court will not abstain from

deciding Sovereign's declaratory judgment

and preliminary injunction claims against

the Cleveland police officer defendants

and Cuyahoga County Prosecutor John T.

Corrigan under either the Younger v.

Harris or the Pullman abstention doctrines;

(3) For the reasons stated in the

court's Memorandum of Opinion, the court

A99

issues a declaratory judgment for

Sovereign, and against the Cleveland

police officer defendants and John T.

Corrigan, holding Ohio's pandering

obscenity statutes, Ohio Revised Code

§§2907.32 and 2907.01(F), unconstitutional

because those statutes violate the First

Amendment to the United States

Constitution;

(4) For the reasons stated in the

Memorandum of Opinion, the court issues

a preliminary injunction against the

Cleveland police officer defendants and

John T. Corrigan restraining those

defendants from enforcing Ohio Revised

Code §§2907.32 and 2907.01(F), either

alone, or in conjunction with other

statutes, against the Sovereign News

Company, Sovereign's owners, or Sover-

eign's employees;

(5) The court retains jurisdiction

over all other claims in Sovereign's

A100

complaint, including the damage and

permanent injunction claims against all

defendants.

IT IS SO ORDERED.

s/ John M. Manos

nit States

District Judge

Alol

ORDER OF THE DISTRICT COURT

RE: CONSOLIDATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SOVEREIGN NEWS, CO., CASE NO. C77-230

Plaintiff,

)

)

)

)

Vv. )

)

)

)

)

)

LEE C. FALKE, ORDER

et al., {Entered Apr. l,

1977]

Defendants

Manos, J.

During the hearings conducted on this

matter from March 29, 1977 to March 3l,

1977, the Court, relying on Fed. R. Civ.

P. 65(a) (2) consolidated the plaintiff's

claim for a permanent injunction with

its motion for a preliminary injunction.

The Court also stated that it would not

hear the plaintiff's damages claims at

this time, but that it would consolidate

the plaintiff's request for a declaratory

judgment with the hearing on the prelim-

inary and permanent injunctions. Some

Al02

of the defendants objected both to the

consolidation of the preliminary injunc-

tion with the permanent injunction and

to the consolidation of the declaratory

judgment question with the injunction

issues.

After receiving briefs on the consoli-

dation questions, the Court is concerned

that merger of thepreliminary injunction

with the permanent injunction may

prematurely involve the Court in the

resolution of facts, such as whether the

police officers who executed the warrant

in this case acted in good faith, which,

under the Seventh Amendment, should be

resolved by a jury when it hears the

42 U.S.C. §1983 damage claims at a later

time. Compare, Amburgey v. Cassady, 507

F.2d 728, 730 (6th Cir., 1974). The

Court seeks to avoid deciding any facts

which might deprive any party of the right

Al03

to a jury trial. See, Dairy Queen v.

Wood, 369 U.S. 469, 479 (1962). However,

this problem can be avoided, without

prejudice to any party, by severing the

preliminary injunction from the permanent

injunction. See, Dairy Queen, supra at

479, footnote 20, citing with approval,

McCullough v. Dairy Queen, 290 F.2d

871 (3rd Cir., 1961); Moore's Federal

Practice 465.04(6), pages 65-70 and

65-71; Berrigan v. Sigler, 499 F.2d

514, 518, footnote 11 (determinations

regarding preliminary injunctions are

not rigidly binding on the merits).

Therefore the Court, exercising its broad

discretion under Fed. R. Civ. P. 65(a)

(2), orders the permanent injunction

severed from the preliminary injunction

and states that it will treat the recently

concluded hearing as one dealing with the

preliminary injunction. The permanent

injunction will be heard at a later time.

A104

The Court is also concerned that by

consolidating the plaintiff's §1983

declaratory judgment claims with the

hearing on the preliminary injunction,

it may be called upon to make factual

determinations which a jury must decide

according to the mandate of the Seventh

Amendment. See, Amburgey, supra at 730;

Beacon Theatres Inc. v. Westover, 359

U.S. 500, 504, 510-511 (1959). However,

the plaintiff has asked this Court for a

declaratory judgment holding Ohio

Revised Code Sections 2907.32, 2907.01,

and 2923.04 unconstitutional. See,

Plaintiff's Complaint, page 7, 4D. The

determination of the constitutional

validity of statutes is a question of

law on which none of the parties are

entitled to a jury trial and which must

be decided by the Court alone. The

Court consolidates the plaintiff's

A105

.

declaratory judgment claim with the

hearing on the preliminary injunction only

with respect to the issue of the consti-

tutional validity of Sections 2907.32,

2907.01, and 2923.04. The Court will

not now entertain consideration of the

plaintiff's declaratory judgment claims

other than the claim that Sections 2907.

32, 2907.01, and 2923.04 violate the

United States Constitution.

The Court reiterates its earlier ruling

that it will not consider the plaintiff's

money damages claims at this time.

The Court further orders each defendant

to file an answer to the plaintiff's

complaint by not later than April 12,

1977. See, Fed. R. Civ. P. 12(a).

IT IS SO ORDERED.

/s/ John M. Manos

John M, Manos,

U.S. District Judge

A106

OPINION OF THE SIXTH CIRCUIT IN

HABEAS CORPUS CASES

Nos. 80-3696, 3728, 3742, 3743, 3817 and 81-3127

UNITED STATES COURT GF APPEALS

FOR THE SIXTH CIRCUIT

Franx Turoso,

Petitioner-Appellee (80-3742/3),

Petitioner-Appellant (80-3696),

Laura Sprxer,

Petitioner-Appellee (80-3728),

DaLene Burcun,

Petitioner-Appellant (80-3817),

Wruuom Lez,

Petitioner-Appellce (81-3127),

Vv.

THe CLevELAND Municirat Count,

THE HONORABLE SALVATORE CALAN-

pra, Fucnasp M. Brennan, Franx

O'Be.t and Wiu1aM J. Brown,

Respondents-Appellees

(80-3696) (80-3817),

Respondents-Appellants

(80-3728, 3742, 3743 and

81-3127).

Arreat from the

United States District

for the Northern Dis-

trict of Ohio.

Decided and Filed February 4, 1982.

Before: Encext and Mennrt, Circuit Judges and Hocan,

District Judge.°

Senior, Jud

Coat her Gn Eaten Bankes a

Al07

United States Distr ct

tting by designation

2 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, etc.

Encet, Circuit Judge, delivered the opinion of the court,

in which Hocan, District Judge, joined. Mewurtt, Circuit

Judge (pp. 19-23), delivered a separate dissenting opinion.

Encet, Circuit Judge. In these six consolidated appeals,

four habeas corpus petitioners assert that their convictions

were invalid because the Ohio obscenity statute under which

they were charged is constitutionally overbroad and vague.

It is vague, they claim, because its language is confusing and

fails to apprise them and others of what conduct is proscribed

by the statute. It is overbroad, they claim, because it pro-

scribes conduct which is protected expression under the First

and Fourteenth Amendments.

We are presented in these appeals with no other issues,

although others were raised in direct appcals to Ohio’s appcel-

late courts, and in the petitions filed in the district courts

pursuant to 28 U.S.C. § 2254.

Although each appeal reaches us in a somewhat different

posture, each has certain aspects in common with the others.

All petitioners were found guilty of a violation of Ohio's

pandering statute, Ohio Rev. Code § 2907.32, following jury

trials in the Cleveland Municipal Court. Those trials took

place before the Supreme Court of Ohio determined that the

Ohio statute was neither overbroad nor vague when rcad in

pari materia with the requirements of Miller v. California, 413

U.S. 15 (1973). See State v. Ronald Burgun, et al., 56 Ohio

St.2d 354, 384 N.E.2d 255 (1978).' Nonctheless, the trial

judge in each trial instructed the jury by reciting the provi-

sion of Ohio Rev. Code § 2907.01(F), defining “obscene”

material or performance, and also by reciting the three basic

guidelines in obscenity cases as set forth in Miller.

All petitioners requested habeas relief following various

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 3

appeals in the state court system. Habeas relicf was granted

in four cases and was denied in two cases. Of the four judges

of the United States District Court for the Northern District

of Ohio considering the issue, two judges (District Judges

John M. Manos and Ann Aldrich) concluded that the statute

was both overbroad and vague, and two judges (Chief Judge

Frank Battisti and Senior District Judge William K. Thomas)

concluded that the statute was constitutionally valid. The

contrary views are set forth in two extensive opinions writtcn

by Judge Manos,? holding the statute invalid, and in extensive

but unpublished opinion filed by Senior Judge Thomas uphold-

ing the statute. Turoso v. Cleveland Municipal Court, No.

C79-1010 (N.D. Ohio September 15, 1980), Appeal No. 3696

(Turoso III).

In Ward v. Illinois, 431 U.S. 767 (1976), the Supreme Court

found that state courts may “authoritatively construe” an

otherwise defective statute to conform to the Miller require-

ments. Following the guidance of Ward, another pancl of

this court, of which the writer of this opinion was also a

member, has thus specifically upheld the statute in response

to claims of facial invalidity due to overbreadth and vague-

ness. Sovereign News Co. v. Falke, —— F.2d —— (6th Cir.

1981). The panel found that any infirmities which may exist

in the statutory language have been cured by the Ohio Su-

preme Court's incorporation of the Miller guidelines and ex-

amples in Burgun, supra. This holding would appear to lay

to rest the issues framed in these appeals as well, since they

are similarly limited to questions of constitutional infirmity

of the statute as a whole. However, the decision in Sovercign

addresses itself only to declaratory and injunctive relief under

42 U.S.C. § 1983 against anticipated but largely unrealized

injury. Because these appeals arise in the setting of habcas

2 One blished and one was not. See Sovereign News

i"): Cr7-236 ay I og Fs ‘Supp, 306 (ND. Ohio 190)

i): Seneretge B ¢ >

A109

4 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, cic.

corpus relief sought after actual conviction for violation of

the statute, we discuss the subject more specifically here to

highlight problems peculiar to actual prosecutions.

L

Section 2907 of the Ohio Revised Code deals with three

of sex-related crimes: sexual assaults and displays

(Ohio Rev. Code §§ 2907.02-2907.09); prostitution offenses

(Ohio Rev. Code §§ 2907.21-2907.27); and offenses related to

the dissemination of obscenity and matter harmful to juveniles

(Ohio Rev. Code §§ 2907.31-2907.37).

The four habeas petitioners here were each charged with

violation of Ohio Rev. Code § 2907.32(A).? Petitioners Lee

3 Ohio Rev. Code § 2907.32(A) provides in relevant part:

(A) No person, with know of the character of the

materia] or performance involved, shal] do any of the following:

(1) Create, reproduce, or publish any obscene material, when

the offender knows that suc canta t > We weed fan ote

mercia)] exploitation or will be publicly disseminated or dis-

played, or when he is reckless in that regard;

(2) Exhibit or advertise for sale or dissemination, or scl!

or publicly disseminate or display any obscene matcria);

(3) Create, direct, or uce an obscene performance, when

the offender knows that it is to be used for commercial exploi-

tation or will be publicly presented, or when he is reckless in

that regard;

(4) Advertise an obscenc performance for presentation, or

present or participate in presenting an obscene performance,

— such performance is presented publicly, or when admission

charged;

(5) Possess or contro] any obscene material with purpose to

violate division (A)(2) or (4) of this section.

(B) It is an affirmative defense to a charge undcr this

section, that the materia] or performance involved was dissem-

eee Seen See 0. Date Sie Pete, omen, Seese-

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 5

and Spiker were charged with violation of section 2907.32( A)

(4), while petitioners Burgun and Turoso were charged with

violating Ohio Rev. Code § 2907.32(A)(2).

actual instructions given by the state trial judge in

of the underlying state prosecutions leave much to be

way of clarity, but it is fair to observe that in

case the jury was instructed as to the basic clements

crime under which the particular petitioner was charged

Ohio Rev. Code § 2907.32. The jury was further read

the specific definitions of “obscene material or performance,”

as contained in Ohio Rev. Code § 2907.01(F). The jury was

also instructed that to convict the particular defendant it

must find that the particular material or performance mects

the three guidelines of Miller:

(a) whether the average person, applying contemporary

community standards would find that the work, taken

as a whole, appeals to the prurient interest;

(b) whether the work depicts in a patently offensive

way, sexual conduct specifically defined by the ap-

plicable state law; and

(c) whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

Miller v. California, supra, 413 U.S. at 24 (emphasis added).

The so-called “Miller examples” were not included by any

of the trial court judges in their instructions as illustrations

of specific sexual conduct. Ohio Rev. Code § 2907.01

specifically defines “sexual conduct.”

nie

4@In addition to the three guidelines sct forth poe ey 7

cision, while not endea to limit otherwise what conduct

Sy eee Senes ty Se Jaw as “sexual,” gave two permissi

(a) Patently offensive representations or descriptions of ultimate

Patently actual or simulated.

a Deena Se or perverted,

ensi tations of masturbation,

a oe cy ae ve ““s tion, excretory

Miller v. California, 413 U.S. 15, 25 (1973).

Alll

6 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, ete.

As used in section 2907.01 to 2907.37 of the Revised Code:

(A) “Sexual conduct” means vaginal intercourse be-

tween a male and a female, and anal intercourse,

fellatio and cunnilingus between persons regard-

less of sex. Penctration, however slight, is suffi-

cient to complete vaginal or anal intercourse.

However, the respective juries reccived instructions including

this definition in only two appeals, Appeal No. 80-3817

(Dalene Burgun) and Appcal No. 81-3127 (William Lee).

Thus, although the juries were told thal they were to find

“sexual conduct specifically defined by state law,” they were

given no such specific definitions in four of six cases. Appeal

No. 80-3743 (Turoso I); Appeal No. 80-3742 (Turoso II);

Appeal No. 80-3796 (Turoso III); Appeal No. 80-3728 (Laura

Spiker). :

II.

A certain amount of obfuscation, in our opinion unneces-

sary, has arisen, but this is due neither to the statute itself

nor to the language of Burgun as contained in its syllabus.

Rather, confusion arises from the body of the opinion in

Burgun and from the jury instructions, which were impliedly

approved by the affirmances of the appeals involved in Bur-

gun.> There appears to have been a tendency in the jury

instructions, both in the underlying state criminal trials here

5 The rule in Ohio is that the precedent in cach case is to be found

in the syllabus rather than in the text of the Give. This rule has

nm some form for over 100 ycars. Rule V1, Ohio S. Ct. Rule of

Practice provides:

A -yvlabus of the points decided by the Court, in each cuuse,

s)..d) be stated in writing by the Judge assig to prepare the

opinion of the Court, which shall be confined to the points of

law arising from the facts of the cause that have been deter-

94 Ohio St. ix (1916

). Following citation of the rule, the Reporter

for the Court indicated: ™

On page iii of 6 Ohio State the reporter made the announce-

All2

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 7

and in Burgun, to focus on the definition of “obscene” in sub-

section (F), without mention of the definition of “sexual con-

duct” in subsection (A). Indeed, the instructions to the jury

in appeal No. 80-3742 (Turoso II) expressly refer to the

“sexual conduct” requirement of the Miller guidelines as being

that which the trial judge had just read from subsection (F).

This misplaced emphasis could engender confusion. Those

federal district judges who granted habeas relicf could well

have considered those instriictions as an indication that the

Ohio statute remained vague: and overbroad, despite the Ohio

Supreme Court's alleged attempt to “authoritatively construe”

it in a manner consistent with Miller.

Petitioners argue that the statute is vague and overbroad

because of, rather than despite, the many specific definitions

in the statute. The definition of “sexual conduct” in section

2907.01(A), see ante at 6, is only the first of many definitions

included in section 2907.01. The others are:

(B) “Sexual contact” means any touching of an cro-

genous zone of another, including without limitation the

thigh, genitals, buttock, pubic region, or, if such person is

vent, under date of August, 1857, but not as a rule adopted by

ine court:

“The Judges desire it to be understood that their con-

currence in the opinion of the who announces the

decision of the Court is limi to that part which was

necessary for the determination of the case upon the facts,

the points of law arising therefrom; and, in gencral,

Turoso v. Cleveland Municipal Ct. Nos. 80-3696, ctc.

a female, a breast, for the purpose of sexually arousing

or gratifying cither person.

(C) “Sexual activity” means sexual conduct or sexual

contact, or both.

(D) “Prostitute” means a male or female who

promiscuously engages in sexual activity for hire, regard-

less of whether the hire is paid to the prostitute or to

another.

(E) Any material or performance is “harmful to ju-

veniles,” if it is offensive to prevailing standards in the

adult community with respect to what is suitable for

juveniles, and if any of the following apply:

(1) It tends to appeal to the prurient interest of

juveniles;

(2) It contains a display, description, or represcnta-

tion of sexual activity, masturbation, sexual excitement,

or nudity;

(3) It contains a display, description, or representa-

tion of bestiality or extreme or bizarre violence, cruclty,

or brutality;

(4) It contains a display, description, or representa-

tion of human bodily functions of elimination;

(5) It makes repeated use of foul language;

(6) It contains a display, description, or represcnta-

tion in lurid detail of the violent physical torture, dis-

memberment, destruction, or death of a human bcing;

(7) It contains a display, description, or representa-

tion of criminal activity which tends to glorify or glam-

orize such activity, and which with respect to juveniles

has a dominant tendency to corrupt.

(F) When considered as a whole, and judged with

reference to ordinary adults [sic]. Or, if it is designed for

sexual deviates or other specially susceptible group,

All4

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 9

am with reference to such group, any matcrial or

ormance is “obscene” if any of the following apply:

(1) Its dominant appcal is to prurient interest;

(2) Its dominant tendency is to arouse lust by dis-

play or depicting sexual activity, masturbation, scxual

excitement, or nudity in a way which tends to represent

human beings as mere objects of sexual appetite;

(3) Its dominant tendency is to arouse lust by dis-

playing or depicting bestiality or extreme or bizarre

violence, cruelty, or brutality;

(4) Its dominant tendency is to appeal to scatologi-

cal interest by displaying or depicting human bodily

functions of elimination in a way which inspires disgust

or revulsion in persons with ordinary sensibilities, with-

out serving any genuine scientific, educational, sociolog-

ical, moral, or artistic purpose;

(5) It contains a series of displays or descriptions of

sexual activity, masturbation, sexual cxcitement, nudity,

bestiality, extreme or bizarre violence, cruelty, or bru-

tality, or human bodily functions of climination, the

cumulative effect of which is a dominant tendency to

appeal to prurient or scatological interest, when the ap-

peal to such interest is primarily for its own sake or

for commercial exploitation, rather than primarily for a

genuine scientific, educational, sociological, moral, or

artistic purpose.

(G) “Sexual excitement” means the condition of hu-

man male or female genitals when in a state of scxual

stimulation or arousal.

(H) “Nudity” means the showing, representation, or

depiction of human male or female genitals, pubic area,

or buttocks with less than a full, opaque covering, or of

a female breast with less than a full, opaque covering of

any portion thereof below the top of the nipple, or of

covered male genitals in a discernibly turgid state.

Al15

10 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, ctc.

(1) “Juvenile” means an unmarried person under the

age of eighteen.

(J) “Material” means any book, magazine, newspa-

per, pamphlet, poster, print, picture, figure, image, de-

scription, motion picture film, phonographic record or

tape, or other tangible thing capable of arousing interest

through sight, sound, or touc'..

(K) “Performance” means any mol.on picture, pre-

view, trailer, play, show, skit, dance, or other exhibition

performed bcfore an audience.

The heart of petitioners’ argument is that, when obscenity

is defined only with reference to subsection (F), the statute

is capable of an unconstitutional application. For example,

they claim the statute, as “authoritatively construed” would

permit prosecutions for simple nudity,* as coming within the

definition of obscene "natter under subsection (F)(2), or it

would permit prosecution for depicting “extreme or bizarre

violence” under subsection (F)(5), neither of which alone

complies with the restrictions in Miller. Petitioners assert

that, because the five subsections of subsection (F) are writ-

ten in the disjunctive, there is no tie-in with the other sub-

subsections. Thus, a jury instructed in the way condoned in

Burgun could find that the defendants were guilty as charged,

even though it might not have believed that the material

or performance involved met the tests of Miller.”

These claims have superficial appeal. However, it is unrea-

sonable to consider only discrete sections of the statute in

This fear is exaggerated. The Ohio courts have recognized that

nudity per se is not obscene. See, e.g., of Cincinnat v. Walton,

76 Ohio Law ye 162, 3 Ohio Ops. yh 145 ~— 407 An Leh

State of Ohio v. Lerner, 33 Otto Low w Abs. 321, aN 282 (Hamil

County Common Plcas 1948).

All6

Nos. 80-3696, ctc. Turoso v. Cleveland Municipal Ct. 11

order to determine its validity. The statute must be read

in its entirety and, as the Ohio Supreme Court so obviously

intended, in pari materia with Miller.* Such a reading dis-

closes that subsection (F) is but one of several requirements

necessary to sustain a conviction. In addition to mecting

one or more of the five requirements of section 2907.01(F),

material must also depict or describe sexual conduct, contact,

or activity within the meaning of section 2907.01(A)-(C).

Alternatively, the material at issue must both satisfy one

or more of the definitions of section (F) and comport with

one of the Miller examples in order to satisfy Miller. Although

no jury in the underlying state criminal >roceedings nere was

advised that specific sexual conduct included the Miller cx-

amples, the Supreme Court of Ohio appears to have con-

strued the former and nearly identical obscenity statute to

8In our view, Judge Merritt's dissent completely misses the point

of the majority decision here, in Sovercign News v. Falkc, supra

and in the o Surreme Court's decision in Burgun. That is, of

cone, Se the Firrt Amendment continues to protect expression

unless it fulls within the permissible limits of Miller v.

alifornia. J Merritt’s unhappiness, therefore, is of necessity

with Miller. It to be manifestly clear that whatever “conduct

the Ohio atute proscribes must perforce come within Miller or it

shows

the female 1 down in front of them licking lips. After

a time one of the males ejaculatcs into her mouth and on the

chin. The other female then licks the

mentioned female. She then

por te poe 5 Fe While she is doing this the other malcs

oS Same ones S paging Wi Ber vegan. The

on >

;

3

i

embrace again.

Appeal No. 80-3743 (Turoso I), Joint Appendix at 22.

All7

12 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, etc.

encompass the Miller examples. See State ex rel Keating v.

Vixen, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973) More-

over, the published order of affirmance by our court in Sov-

ereign News, supra, recognizes that those examples were

adopted by reference in Burgun, a conclusion reached as well

by Judge Thomas in his opinion in appeal No. 80-3696 (Turoso

III).

As a result, a potential defendant has definite standards by

which he can evaluate any matcrial at issue. For example,

one who finds himself charged with pandcring obscenity by

selling obscene material will first read section 2907.32( A) (2)

for the essential elements of the offense. He can then refer

to section 2907.01 for a definition of “obscene,” or of any other

term with a specific meaning under the statute. Knowing

also that the Ohio Supreme Court has construed the statute

as incorporating the guidelines of Miller v. California, he will

know its three requirements must be proved in addition to

the elements of obscenity listed in section 2907.01(F).

Therefore, under the statute “as written and authoritatively

%The former statute provided that:

(A) Any material or performance is “obscene” if, when con-

sidered as a whole and judged with reference ‘to ordinary

adults, any of the following apply:

(1) Its dominant appeal is to prurient interest;

(2) LA pam my ontuney © is to arouse lust by displaying

ey eee a sexual excitement, or sexual con-

duct — h tends to represent human beings

as mere objects of sexual appctite;

(3) —by dominant tendency is to arouse lust by displaying

bestiality or extreme or bizarre

qrualie, or

(4) It contains a series of displays or descri ons of

q excitement, sexual cond ality,

- human bodil of elimination, a-

is primarily

sees rather than for a genuine scicntific, ~ hme

onal, sociological, or artistic purpose.

cA) Snie Ohio Rev. Code (1970) (current version at section

2507 01(F) Oh Ohio Code (1974)).

All8

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 13

construed,” it is incumbent upon the prosecution to prove

beyond a reasonable doubt that:

(a) The material depicts conduct which is sexual; that

is, it depicts vaginal intercourse or any of the other

explicit examples expressly sct forth in the defini-

tion of sexual conduct in section 2907.01(A), or

one of the two examples of such conduct as de-

scribed in Miller;

(b) the sexual conduct depicted is obscene, as that

term is expressly defined in section 2907.01(F)(1)-

(5); and

(c) the materia] meets the three guidelines of Miller,

in that (1) when taken as a whole and applying

contemporary community standards, it appeals to

the prurient interests of the average person; (2) it

depicts or describes, in a patently offensive. way,

the sexual conduct specifically defined in section

2907.01(A) or in the examples of Miller; and (3)

taken as a whole, it lacks serious litcrary, artistic,

political, or scientific value.

The foregoing seems to us the most logical, natural and also

literal construction of the Ohio statute, construed in pari

materia with Miller. It is true that, taken alone, certain of

the disjunctive definitions of “obscene” in section 2907.01(F)

may appear to apply only to protected activity, such as simple

nudity and violence. Similarly, it is possible that a rcading

of both Miller and the statute creates redundancies and sur-

plusage. This result can be avoided in each particular case

with careful jury instructions. More important, it is not for

our court to determine that a better statute could be devised.

Rather, it is our function to follow the Supreme Court's find-

ing that state statutes dealing with obscenity can be uphcld

where their authoritative judicial construction has made them

conform to Miller. Miller, supra, 413 U.S. at 24, n8, 25;

Ward v. Illinois, 431 U.S. 767 (1977). Defendants can deter-

All19

14 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, ctc.

mine that the matcrial must depict explicit sexual conduct as

defined in the statute, that the sexual conduct must also mect

one or more of the definitions of “obscene” in the Ohio statute,

and that all three of the Miller guidelines must be met in

order to convict him. Thus, there can be no prosecution for

simple nudity, nor for violence or bizarre conduct alone. As

a result, there can be no claim of overbreadth on that account,

nor is the statute vague as leaving uncertainty.

ITI.

As we have mentioned earlier, the instructions given in

the underlying criminal prosecutions in the Cleveland Munici-

pal Court varied in their form from that outlined above. All

included a reading of the entire definition of “obscene” con-

tained in section 2907.01(F); however, only two included a

reading of the definition of “sexual conduct” contained in

section 2907.01(A). None included the Miller examples.

In no case is it claimed that the particular material or

performance did not, in fact, depict sexual conduct specifically

included in the statutory definition. In fact, there is no claim

that such an instruction (or indeed any other definition which

the particular case might appear to make desirable) was re-

quested and refused. It is obvious to us that if a jury is

advised that material must depict sexual conduct “specifically

defined by applicable state law,” good sense suggests that the

specific definition be given. It is also apparent that if con-

fusion existed, it was wholly avoidable by a straightforward

application of the statute and of Miller. If such confusion had

been seen as prejudicial by the defendants in the criminal

proceedings, it could easily have been corrected or could have

been made the subject of appropriate objection on appeal

within the state system. It scems equally clear to us, from

the graphic descriptions of the matcrial involved, that these

cases concern what is commonly known as hard core porno-

graphical material. It so obviously fits within the appropriate

A120

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 15

definitions of “obscene materials” that any further or more

explicit definitions could only have reinforced the likclihood

of conviction. It is thus difficult to believe that any failure

to object or to raise such issues before us was an oversight.

Obviously, the petitioners here have realized that their best,

and probably only effective, defense lay in persuading the

courts that the statute was altoghether void. Anything short

of that finding would at best lead to a grant of a conditional

writ, retrial under even Jess favorable but completcly lawful

instructions, and, once morc, convictions.

In his written opinion filed in the appeal of Frank Turoso,

Appeal No. 80-3696 (Turoso III), United States District Judge

William K. Thomas noted that the jury instruction involved

therein included neither the Miller “examples” nor the defini-

tion of “sexual conduct” of section 2907.01(A). Turoso, supra,

C79-1010 at 21. Judge Thomas’ observations explain both

the nature of the problems in these appeals and the reason

why they do not reach constitutional proportions. He indi-

cates further that omissions in the jury instructions do not

require holding the entire statute unconstitutional, the sole

legal ruling sought here:

In his recommended report, the magistrate noted that the

court (Judge Calandara) did not define sexual conduct

in terms of the two examples in Miller, at p.25, nor did

the court define sexual conduct as it appears in Ohio

Revised Code § 2907.01(A). The magistrate then con-

Since the court instructions did not define the sexual

conduct to be restricted with the requisite specificity,

the instructions were unconstitutionally overbroad.

Sovereign News Co., supra, at p. 400.

Thereupon he recommended that the petition for a writ

of habeas corpus be granted.

Immediately before Judge Calandra gave his general in-

structions to the jury, he informed defense counsel that

Al21

16 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, cic.

he would “charge the jury on the Miller case and the

Smith case and the Burgen (sic) case.” As the quoted

portions of Judge Calandra’s instructions indicate, he

gave the jury the Miller guidelines. Following the com-

pletion of the general instructions, there was a discussion

at the bench about several matters. At that time, defense

counsel did not ask the judge to add the Miller “exam-

the court's instructions on the Miller guidclines.

Thus defendant did not ask the court to give to the jury

the Miller “examples.” Moreover, defendant did not

object to the giving of the Miller guidelines without the

Miller “examples.”

In Henderson v. Kibbe, 431 U.S. 145, 154-55, (1977), the

Court reversed a decision of the Second Circuit wherein

a divided panel had granted a state prisoner's petition

for habeas corpus on the ground that a New York state

‘al judge’s failure to instruct the jury on the issue of

....Sation was constitutional error. The Court observed:

Orderly procedure requires that the respective ad-

versaries' views as to how the jury should be in-

structed be presented to the trial judge in time to

enable him to deliver an accurate charge and to

minimize the risk of committing reversible error.

It is the rare case in which an improper instruction

will justify reversal of a criminal conviction when

no objection has been made in the trial court.

The Court further noted that “an omission or an incom-

plete instruction, is less likely to be prejudicial than a

misstatement of the law.” The Court announced the rule

The burden of demonstrating that an erroncous in-

structing was so prejudicial that it will support a

collateral attack on the constitutional validity of a

state court's judgment is even greater than the show-

ing required to establish plain error on direct appeal.

=o in such a collaterial proceeding is

the ailing instruction by itself so infected

Al22

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 17

the entire trial that the resulting conviction violates

due process,” Cupp v. Naughten, 414 U.S. at 147,

not merely whether “the instruction is undesirable,

erroneous, or even ‘universally condemned’.”

Id., at 146.

This controlling rule of federal habeas corpus law differs

from the magistrate’s recommended ruling, isolating, as

he did, the judge’s instructions from the rest of the trial

and determining that the court's instructions were un-

constitutionally incomplete. However, the question in

this federal habeas corpus proceeding is not whether

Judge Calandra’s instruction to the jury, sans a definition

of “sexual conduct” in terms of the two examples in

Miller, at p.25, nor “. . . as it appears in O.R.C. 2907.01

(A),” rendered the “instructions . . . unconstitutionally

overbroad.” The question rather is whether the instruc-

tion without such definition of sexual conduct “so infected

the entire trial that the resulting conviction violates due

process.

Id. at 21-23.

The foregoing comments apply with equal force to each

of the appeals consolidated hcre, and no effort is made by the

parties to assert any meaningful distinction between them in-

dividually. There is no evidence in petitioners’ bricfs or the

records below that any trial was so tainted by a failure to

instruct properly that due process was violated. Thus, habeas

relief is unwarranted. See Long v. Smith, Superintendent,

80-3057 at 10-11 (6th Cir. October 21, 1981).

IV.

The Ohio Supreme Court has authoritatively construed the

statute to comport with the Miller requirements. It has thus

made clear its commitment to the protection of First Amend-

ment expression. Petitioners assert that the court’s authorita-

tive construction” of the obscenity statute falls short of meet-

A123

18 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, etc.

ing the Miller standards, offering as evidence both the implicit

approval of potentially defective jury instructions in Burgun,

supra, and the alleged insensitivity to the Miller requirements

« in State ex rel Keating v. Vixen, 35 Ohio St.2d 215, 301 N.E.2d

880 (1973).

It is sufficient for us to observe in closing what was recog-

nized in Miller:

If a state law that regulates obscene material is [limited

to conform with Miller requirements), as written or con-

strued, the First Amendment values applicable to the

States through the Fourteenth Amendment are adcquate-

ly protected by the ultimate power of appellate courts

to conduct an independent review of Constitutional

claims when necessary.

Miller, supra, 413 U.S. at 25. Although we may agree with

the dissent that the language in Vixen, supra, is disturbing,

that case is obviously not before us here. We have never

conceived that a federal court's responsibility to protect free-

dom of expression under the First Amendment is discharged

by mere lip service to any rule, however artfully crafted.

The judgments in appeals No. 80-3696 and 80-3817 are

affirmed. The judgments in appeals No. 80-3743, 80-3742,

81-3127 and 80-3728 are reversed.

A124

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 19

Ment, Circuit Judge, dissenting. I agree with District

Judges Manos and Aldrich that the Ohio obscenity statute is

unconstitutional. Our Court treats this as just another crim-

inal statutory construction case and trics to perform radical

surgery on the statute in order to save it and the state con-

victions based on it. But this is a statute outlawing speech

and artistic expression; it requires a more sensitive reading

of the First Amendment than our Court has given. Unlike

the relatively healthy state statute saved in Ward v. Illinois

by insertion of a Miller pacemaker, the heart of the Ohio

statute in question here is malignant. A Miller pacemaker

will not regulate it. If our Court’s opinion stands as the law

of obscenity, then all state obscenity statutes will be upheld

as valid, no matter how broadly or specifically they censor

protected speech, so long as the Miller standards are repeated

to the jurors after they are instructed to apply the unconsti-

tutional statute.

The Illinois statute in Ward was a gencral, single-shot pro-

vision outlawing material when “its predominant appeal is

to prurient interest.” The Ohio statute has more than thirty

specific sections and subsections that cover the waterfront.

The heart of the statute is section E with seven subsections and

section F with five. Section E, relating to juvenile matcrial,

covers everything from “bizarre violence,” “foul language,”

“physical torture” and “death” to “nudity” and “sexual excite-

ment.” Under Section F, and the jury instructions approved

by our Court today, a defendant can be convicted of pander-

ing adult obscenity and go to jail, for displaying or depicting

“(1] sexual excitement or [2] nudity in a way which tends

to represent human beings as mere objccts of scxual appctite

. . . [or 3] bestiality or [4] extreme or bizarre violence, cruclty

or brutality . . . or [5] depicting human bodily functions of

elimination in a way which inspires disgust or revulsion in

persons with ordinary sensibilities ....” Ohio Rev. Code

§ 2907.01(F). “Bestiality” and other similar ideas are not

A125

20 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, cic.

defined but obscene “nudity” consists of “showing . . . [1]

male or female genitals, [2] pubic area, or [3] buttocks with

less than a full, opaque covering or, [4] of a female breast with

less than a full opaque covering of any portion thereof below

the top of the nipple . . . .” Ohio Rev. Code § 2907.01(H).

These provisions are the heart of the statute.

Under the statutory scheme and jury instructions approved

by us today, Phidias and Praxiteles would be condemned not

to a cup of hemlock, along with Socrates, but to languish in

an Ohio jail along with the creators of most Greck statues

of Aphrodite, Hermes, Apollo and the Satyrs. For these

sculptors “displayed” genitals, buttocks and female breasts

“below the top of the nipple” “with Jess than a full, opaque

covering.” The Parthenon frieze of Phidias has for over 2500

years withstood wind and storm and bombings and invasions

by Persians, Spartans, Romans, Ottoman Turks and German

artillery, but its marble nudity and magnificent depiction of

“bizarre violence” could not withstand the onslaught of the

righteous of Ohio. Michclangelo’s ceiling twenty centuries

later in the Sistine Chapel would now have to come down

for the larger-than-life genitals and buttocks of Adam are

clearly “displayed” as God reaches out his finger to instill life

in the first man. The creation could not have taken place in

Ohio.

Moreover, since relieving oneself of body fluid is also “ob-

scene” in Ohio, the creator of the famous sculpture of the

little boy in Brussels, who performs for all to sec function

#1 in a pond, would unfortunately have to go to jail, and the

little boy of bronze, in order to escape the sledge hammer of

the godly, would have to place over his genital region not

merely a fig leaf but nothing less than a “full opaque cover-

ing.” The Pope would even have to remove from Ohio the

Vatican Museum with its many fearsome statues, friezes and

pictures showing “bestial” and “bizarre” battles of an extreme-

ly violent nature between animals and animal-like humans.

A126

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 2)

If you believe that all this is a dissenter’s exaggeration and

that the authorities in Ohio would not really countenance

under this statute the suppression of such works of art, I

admonish you to read State of Ohio ex rel. Keating v. “Vixen,”

35 Ohio St.2d 215, 301 N.E.2d 880 (1973), the response of

the Ohio Supreme Court to the action of the United States

Supreme Court, 413 U.S. 905 (1973), vacating the state court's

earlier decision in 27 Ohio St.2d 278 (1971), in light of

Miller. The state court, purporting to apply post-Miller stan-

dards, finds the film in question obscene under the statute

after describing it as follows:

The principal character, Vixen, is a buxom young wife,

whose ‘square’ husband is a combination pilot and fishing

guide in the wilderness of British Columbia. His work

keeps him away from their home for extended periods of

time. Among the other characters are Vixen’s motorcycle

hood brother, a Canadian Mountie, with whom Vixen

passes the first few minutes of the film, a vacationing

couple who are guest-clients of the husband, a black

American whom Vixen despises and who has ficd the

country to avoid the draft, and an Irish communist who

attempts at gun-point to force Vixen’s husband to fly

him to Cuba. The first four are objects of Vixen’'s

lechery.

The movie is approximately 70 minutes long, out of

which approximately one-half deals with incest, adultery,

and lesbianism, which are graphically portrayed through

facial and bodily expressions indicative of orgasmic re-

action. The remaining one-half of the movie leads the

viewer through such contemporary issucs as racism, anti-

militarism, communism and airplane hijacking. It should

be noted that, although the players are frequently shown

nude and at full length, at no place are their genital

parts exposed to the leering lens of the camera. (Em-

phasis added. )

272 N.E.2d at 139. Although this movie may not be a work

Al27

22 Turoso v. Cleveland Municipal Ct. Nos. 80-3696, ctc.

of art, it is far from hard core pornography.’ On the next

page of the opinion, the Ohio Supreme Court explains that

just one sex scene would make even “The Sound of Music”

obscene and subject to prior injunctive restraint:

Assume, hypothetically that the main character in ‘The

Sound of Music’ performs during onc scene, an act of

sexual lewdness, could we permit that part of the film to

go unregulated merely because the producer had an

‘eye on the recent Supreme Court rulings?’ The question

supplies its own answer.

In the end, however, the situation is not touched with much

humor. Books are being confiscated and people going to jail

for speech under a statutory scheme that clearly and patently

contravenes the First Amendment. As District Judges Manos

and Aldrich state so cogently, all the Supreme Court of Ohio

has done is simply add the Miller standards as a new, altcrna-

tive method of sending people to prison while Jcaving in effect

alongside it the old unconstitutional method outlawing graphic

expression of “sexual excitement,” “nudity,” “bizarre violence”

and “human bodily functions.” It is impossible to tell in

these cases whether the jury convicted and the Ohio courts

imprisoned the defendants because they violated the old un-

constitutional statutory provisions or the new Miller standards.

The juries in these cases were given all of the alternatives in

the disjunctive and were not required to state which of the

several standards they applied.

Our system of criminal justice cannot live with the under-

lying principle enunciated today in this case by our Cowrt

a man’s conviction for speech is valid under a patently un-

constitutional law so long as the state could, theoretically,

have repealed the old law and drafted another, more narrow,

'In Miller, the court said: “Under the holdings announced today,

no one will be subject to prosecution for . . . obscene materials unless

these materials depict or be patently offensive ‘hardcore’ sexual

conduct specifically defined ....” 413 U.S. at 27.

A128

Nos. 80-3696, etc. Turoso v. Cleveland Municipal Ct. 23

valid statute that proscribes the same speech. Our system

cannot live with this principle because it violates due process

and creates the offense ex post facto. The opinion of the

court also violates principles of federalism. We have the

authority to review and declare invalid state laws which

abridge the First Amendment, but we are not authorized to

repeal their statutes and reenact them to suit ourselves. And

even more to the point, if we are going to presume to enact

new laws for the states rather than simply revicw judicially

the ones they have, we should at least enact valid laws for

them. The one we have pieced together here stil] outlaws

nudity, bizarre violence, foul language, torture, death and

the “glorification” of sex and many other materials protected

by the First Amendment. It violates the basic principle laid

down in Cohen v. California, 403 U.S. 15, 26 (1971) that the

First Amendment protects the “emotive function” as well as

“cognitive content” and the principle that First Amendment

protection of artistic materials is “not lessened by the fact

that they are designed to entertain as well as inform.” Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

A129

OPINION OF THE DISTRICT COURT

IN HABEAS CASE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

FRANK TUROSO C79-1010

Petitioner {Entered Sept.

15, 1980)

)

)

)

)

Vv. )

)

THE CLEVELAND )

MUNICIPAL COURT, )

et al. )

MEMORANDUM AND ORDER

THOMAS, J.

Challenging his conviction by a

Cleveland Municipal Court jury for

pandering obscenity (O.R.C. §2907.32(A)

(2)) and his consequent sentence, Frank

Turoso petitions this court for a writ

of habeas corpus (28 U.S.C. §2254).

Petitioner contends that he was convicted

and sentenced in violation of his First

and Fourteenth Amendment rights. He

says that O.R.C. §2907.32(A) and §2907.

01 (which defines obscenity and therefore

must be read with the former section)

A130

are unconstitutionally vague and over-.

broad.

Convicted on April 29, 1977, Frank

Turoso was sentenced to six months in

jail and fined $1,000. The Ohio Court of

Appeals (Eighth District) affirmed that

conviction on April 26, 1979. Petitioner

did not appeal his conviction to the

Ohio Supreme Court. Instead, he filed

his habeas corpus petition in this court.

Magistrate Streepy, to whom the case

was referred for a report and recommended

decision, concluded:

It is arguable that [the R.C. 2907.

01) definition of sexual conduct,

considered in combination with the

element of "patently offensive" in

part (b) of the [Miller v. California,

413 U.S. 15 (1973)] guidelines, comes

within the examples of “hardcore”

sexual conduct set forth in Miller,

at p. 25, which the state may

constitutionally regulate.

Nevertheless, the magistrate recommended

that the petition for a writ of habeas

corpus be granted on the following ground:

Al31

The court in petitioner's case

did instruct the jury in the

language of the three-part Miller

standard; but did not specifically

define “sexual conduct" in part

(b) of the standard pursuant to

the applicable state law. Thus.

the court did not define sexual

conduct in terms of the two

examples in Miller, at p. 25,

nor did the court define sexual

conduct as it appears in Ohio

Revised Code §2907.01(A).

Since the court instructions did

not define the sexual conduct

to be restricted with the

requisite specificity, the

instructions were unconstitu-

tionally overbroad. Sovereign

News Co., [448 F.Supp. 306, 400

(N.D. Ohio 1977, Manos, J.)]

The subjects of the two recommended

rulings of the magistrate will be

covered in the memorandum of this court.

The first recommended ruling need not be

discussed because this court hereafter

concludes that the Ohio obscenity law

is constitutional as construed by the

Ohio Supreme Court in light of Miller

v. California, 413 U.S. 15 (1973),

and Ward v. Illinois, 431 U.S 767 (1977).

A132

The second recommended ruling of the

magistrate, not adopted by this court,

will be discussed.

I.

A.

Two jurisdictional issues are raised

by this habeas corpus petition. First,

since the petitioner has not yet begun

to serve the sentence of six months or

pay the $1,000 fine imposed upon hin,

is he "in custody” within the meaning

of 28 U.S.C. §2254? An entry in the

case transcript reads:

Mandate received from Court of

Appeals. Judgement affirmed.

Sentence stayed. Same bond.

{$5,000 surety bond] pending

resolution of habeas corpus in

U.S. District Court.

Hensley v. Municipal Court, 411 U.S. 345

(1973), held that a person released on

bond (personal recognizance in Hensley)

is in “custody" within the meaning of

Al33

the federal habeas corpus statute,

28 U.S.C. §§2241(c) (3), 2254(a). But for

the staying of the sentence by the state

court, and his continued release on

surety bond, the petitioner would be

serving the Cleveland Municipal Court's

sentence. Hence, under Hensley, he is

"in custody."

However, Hensley emphasizes that a

state defendant “released on bail or on

his own recognizance pending trial or

pending appeal...must still contend with

the requirements of the exhaustion

doctrine if he seeks habeas corpus relief

in the federal courts." This raises a

second jurisdictional question.

While 28 U.S.C. §2254(b), (c) provides

that a petition for writ of habeas

corpus by a person in state custody will

not be granted unless state court

remedies have been exhausted, Lucas v.

Al34

People of State of Michigan, 420 F.2d

259, 261 (6th Cir. 1970), recognizes that

“the exhaustion requirement is not

absolute.” When a state court's rulings

are settled and there is no reason to

believe that a state's appellate courts

are prepared to depart from those rulings,

Lucas holds that “to require [a peti-

tioner] to exhaust [the] remedies in

the State courts would be an exercise

in futility." Rachel v. Bordenkircher,

590 F.2d 200, 204 (6th Cir. 1978),

approved and followed Lucas.

In State v. Thomas, 57 Ohio St. 2d

71, 387 N.E. 2d 229 (1979), a per curiam

opinion, the Supreme Court of Ohio

reviewed the Akron Municipal Court's

dismissal of a pandering obscenity (R.C.

2907.32) charge. The dismissal had been

affirmed by the Summit County Court of

Appeals on the ground that R.C. 2907.32

Al35

-

and 2907.01(F) (defining obscenity) are

"“unconstitutionally overbroad and vague."

In reversing the court of appeals “on the

authority of and for the reasons stated

in State v. Burgun, 56 Ohio St. 2d 354

(1978), 384 N.E.2d 255," the Ohio Supreme

Court reaffirmed the ruling that R.C.

2907.01(F) “is neither unconstitutionally

overbroad nor void for vagueness when it

is authoritatively construed to incor-

porate the guidelines prescribed in

Miller v. California, 413 U.S. 15 (1973),

93 S.Ct. 2607, 37 L.Ed. 419." Thus, to

require petitioner to exhaust his remedies

through the Ohio Supreme Court when its

adjudication of constitutionality is

predictable would be the “judicial

runaround” which Lucas finds to be

futile and unnecessary.

B.

Miller v. California formulated three

“basic guidelines for the trier of fact,”

A136

and the statement of these guidelines in

the conjunctive requires each to be’

established;

(a) whether “the average person,

applying contemporary community

standards” would find that the

work, taken as a whole, appeals

to the prurient interest, Kois

v. Wisconsin, supra, at 230,

quoting Roth v. United States,

supra, at 489; (b) whether the

work depicts or describes, in

a patently offensive way, sexual

conduct specifically defined

by the applicable state law; and

(c) whether the work, taken as

a whole, lacks serious

litarary, artistic, political,

or scientific value.

Id., at 24.

Preliminary to the formulation of

the guidelines, the Court had stated:

We acknowledge...the inherent

dangers of undertaking to

regulate any form of expression.

State statutes designed to

regulate obscene materials must

be carefully limited...As a result,

we now confine the permissbile

scope of such regulation to works

which depict or describe sexual

conduct. That conduct must be

specifically defined by the

applicable state law, as written

or authoritatively construed.

A137

Id., at 24.

The Court elaborated upon part (b)

of the guidelines by giving examples of

sexual conduct, the depictions of which

could be defined and cegulated by a

state:

(a) Patently offensive representations

or descriptions of ultimate sexual

acts, normal or perverted,

actual or simulated.

(b) Patently offensive represen-

tations or descriptions of

masturbation, excretory func-

tions, and lewd exhibition

of genitals.

Id., at 25. The Court was careful to

point out that “[w]Je do not hold...

that all States...must now enact new

obscenity statutes. Other existing

state statutes, as construed heretofore

or hereafter, may well be adequate."

Id., at 24, n. 6. Allowance was made,

indeed permission was given, for state

courts to “authoritatively construe”

their obscenity statutes to bring those

statutes into conformance with Miller.

A138

The Court ruled:

If a state law that regulates

obscene material is thus limited,

as written or construed, the

First Amendment values applicable

to the States through the

Fourteenth Amendment are adequately

protected by the ultimate power

of appellate courts to conduct

an independent review of consti-

tutional claims when necessary

(citations).

Id., at 25.

In Ward v. Illinois, 431 U.S. 767

(1977), the Court was faced with a pre-

Miller statute. I111.Rev.Stat. ch. 38,

§11-20(b) thus defined obscenity: "A

thing is obscene if, considered as a

whole, its predominant appeal is to

prurient interest, that is, a shameful

or morbid interest in nudity, sex, or

excretion, and if it goes substantially

beyond customary limits of candor in

description or representation of such

matters...." It was argued in Ward that

the statute was unconstitutionally vague

A139

because it failed to specifically

define the sexual conduct which could not

be “depicted in a patently offensive way.”

The argument was rejected on several

grounds. In cited decisions of the

Illinois Supreme Court that predated the

sales for which Ward was prosecuted,

the Court noted that "[mJaterials such

as [Ward sold], which by title or content

may fairly be described as sado-masochis-

tic, had been expressly held to violate

the Illinois [obscenity] statute...."

Id., at 771. Thus there was “notice

that materials dealing with the kind

of sexual conduct involved [in Ward)

could not be legally sold in [Illinois])."

In a case remanded under Miller,

People v. Ridens, 59 Ill. 2d 362, 321

N.E.2d 264, 270 (1974), the Illinois

Supreme Court construed section 11-20

"to incorporate parts (a) and (b) of

A140

the Miller standards.” In Ridens, the

court neither expressly adopted nor set

forth the Miller “examples,”

By the Illinois court's incorporating

part (b) of the Miller guidelines into

the Illinois statute, the Court reasoned

that,

The Illinois court thus must

have been aware of the need

for specificity and of the

Miller Court's examples explain-

ing the reach of part (b).

See id., at 25.

Since the "Illinois court plainly

intended to conform the Illinois law to

part (b) of Miller," the Court concluded,

"[T)here is no reason to doubt that,

in incorporating the guideline as part

of the law, the Illinois court intended

as well to adopt the Miller examples,

which gave substantive meaning to part

(b) by indicated the kinds of materials

within its reach." Ward, supra, at 775.

The Court then added:

Al4l

The alternative reading of

the decision would lead us to

the untenable conclusion that

the Illinois Supreme Court

chose to create a fatal flaw

in its statute by refusing

to take cognizance of the

specificity requirement

set down in Miller.

Id., at 775. Thus, the Court held that

the incorporation of part (b) of the

Miller guidelines impliedly incorporated

the Miller patently offensive "examples"

into the Illinois obscenity law. However,

these “specifics were offered merely as

*‘examples,‘'" 413 U.S. at 25; and as later

pointed out in Hamling v. United States,

418 U.S. 87, 114 (1974), they “were not

intended to be exhaustive."

The conclusions of the Court in Ward

are no less an independent ground of

decision because the Court thereafter

found reinforcement for these conclusions

in the later Illinois decision of People

v. Gould, 60 I111.2d 159, 324 N.E.2d 412

Al42

(1975). The Court noted that Gould

quoted a passage from Miller which

"contains the explanatory samples as

well as the guidelines" and that Gould

then stated that "Ridens had construed

the Illinois statute to include parts

(a) and (b) of the Miller guidelines, and

it expressly referred to the standards

set out in the immediately preceding

quotation from Miller." The Court

then held:

Because the quotation containcd

not only part (b) but the

examples given to explain that

part, it would be a needlessly

technical and wholly unwarranted

reading of the Illinois opinions

to conclude that the state court

did not adopt these explanatory

examples as well as the guidc-

lines themselves.

431 U.S. at 775-76. The Court further

held:

Given that Illinois has adopted

Miller's explanatory examples,

what the State has done in

attempting to bring its statute

in conformity with Miller is

surely as much as this Court did

A143

in its post-Miller construction of

federal obscenity statutes. In

Hamling v. United States, 418 U.S.

at 114, we construed 18 U.S.C.

§1461, which prohibits the mailing

of obscene matter, to be limited

to "the sort of" patently offensive

representations or descriptions

of that specific hardcore sexual

conduct given as examples in Miller.

Id., at 776.

Hence, the question of mecting the

constitutional statutory specificity

requirement depends upon whether the

Ohio statute, section 2907.01(F), has

been authoritatively construed by the

Ohio courts to incorporate the Miller

three-part guidelines and if so, whether

the incorporation of the Miller examples

may be implied therefrom.

Cc.

O.R.C. 2907.01(F) thus defines

“obscene”:

(F) When consid-red as a

whole, and judged with reference

to ordinary adults, or, if it is

designed for sexual deviates

Al44

or other specially susceptible

group, judged with reference

to such group, any material or

performance is "“obscene"if any

of the following apply:

(1) Its dominant appeal is to

prurient interest:

(2) Its dominant tendency

is to arouse lust by displaying

or depicting sexual activity,

masturbation, sexual excitement,

or nudity in a way which tends

to represent human beings as

mere objects of sexual appetite;

(3) Its dominant tendency

is to arouse lust by displaying

or depicting bestiality or

extreme or bizarre violence,

cruelty, or brutality;

(4) Its dominant tendency

is to appeal to scatological

interest by displaying or depicting

human bodily functions of elimin-

ation in a’ way which inspires

disgust or revulsion in persons

with ordinary sensibilities,

without serving any genuine

scientific, educational, sociolo-

gical, moral, or artistic purpose;

(5) It contains a series of

displays or descriptions of

sexual activity, masturbation,

sexual excitement, nudity, bestiality,

extreme or bizarre violence,

cruelty, or brutality, or human

bodily functions of elimination,

the cumulative effect of which is a

Al45

dominant tendency to appeal to

prurient or scatological

interest, when the appeal to

such interest is primarily for

its own sake or for commercial

exploitation, rather than

primarily for a genuine scientific,

educational, sociological, moral,

or artistic purpose.

The petitioner has not filed any

comment on the magistrate's recommended

report. However, the petitioner argues

in his written submission to the magis-

trate that the section 2907.01(F)

definition of obscenity is unconstitu-

tionally overbroad and vague because it

does not comply with the standard

articulated by the Supreme Court in Miller

v. California, 413 U.S. 15 (1973). He

argues that the statute is written in

the disjunctive rather than the conjunc-

tive, allowing for prosecution upon the

finding of any one of the five charac-

teristics listed within section 2907.01

(F). He further argues that depictions

A146

proscribed by section 2907.01(F) include

violence and mere nudity, both of which

are alee. Finally, petitioner

claimed that the statute does not define

with the requisite specificity the sexual

conduct which may not be depicted

because it is patently offensive.

Respondents Cleveland Municipal Court

and the Honorable Salvatore R. Calandra

have filed objections to the report of

the magistrate. In sum, they argue that

the Ohio Supreme Court has construed

the Ohio obscenity law to incorporate

the Miller guidelines and that necessarily

the incorporation includes the Miller

examples of patently offensive sexual

conduct. Since such incorporation was

presumed by the United States Supreme

Court in upholding the Illinois obscenity

1

In Jenkins v. Georgia, 418 U.S. 153, 161

(1973), the Court stated, "(Nudity alone is

not enough to make material legally obscine under

the Miller standards."

Ai47

law in Ward v. Illinois, 431 U.S. 767

(1977), the same presumption of incor-

poration of the Miller "examples" sustains

the Ohio obscenity law against petition-

er's attack, it is urged.

In State v. Burgun, 56 Ohio St 2d 354,

384 N.E.2d 255, (1978), the Ohio Supreme

Court had before it appeals of four

persons, each convicted by a jury in

Cleveland Municipal Court of pandering

obscenity in violation of O.R.C. 2907.32

(A) (4) .? The defendants were cashiers

or clerks in adult bookstores located

in Cleveland. In each situation police

2 o.R.c. 2907 .32(A) (4), in pertinent part

provides:

(A) No persons with knowledge of the char-

acter of the material or performance involved,

shall do any of the following:

(4) Advertise an obscene performance for

presentation, or present or participate in

presenting an obscene performance, when such

performance is presented publicly, or when

admission is charged....

Al48

viewed movies in coin operated projectors

located in booths at the rear of the

premises. Later, pursuant to search

warrants, the movies were seized, admitted

into evidence, and viewed by the jury.

Each appellant charged that the

definition of obscenity, which must be

read together with R.C. 2907.32(A) (4),

is

overbroad "on its face" because an

item can be considered "obscene"

if any of the characteristics

outlined in subsections (1)

through (5) are present. ([Supra,

at p.9] Since the statute is

written in disjunctive rather than

conjunctive language, it is

alleged that a conviction can

be obtained without a finding

that the tripartite test in Miller

v. California (1973), 413 u.S. 15,

has been satisfied.

3

At p. 358, the court extends appellants’

criticism of section 2907.01(F):

In addition to the criticism that

subsections (1) through (5) do not

faciaily incorporate the three-part

Miller test, the appellants have asserted

other instances where the statute

Al49

The Burgun court's familiarity with

the Miller guidelines is revealed in its

3 cont.

conflicts with that decision. It is

argued that subsection (3) unconstitutionally

restriccs the depiction of extreme

violence when only material depicting

or describing sexual conduct may be

limited as being obscene. In addition,

appellants argue that subsections

(1), (2), (3), and (5) are facially

overbroad because acts of "'simple

nudity'” as opposed to hard core porno-

graphy can also be considered to be

""obscene’." Likewise, what is meant

by material whose "'dominant appeal is

to prurient interest'” is cited as a

further example of unconstitutional

overbreadth. Finally it is argued

that the general lack of specificity

found in R.C. 2907.01(F) warrants not

only a finding of unconstitutional

overbreadth but also a determination

that the entire statute is void for

vagueness.

In Sovereign News Company v. Falke, 448 F.Supp.

306, 400 (N.D. Ohio 1977, Manos, J.), the

court found that in four separate instances,

“section 2907.01 defines ‘obscenity’ in a

manner that restricts constitutionally protected

expression.” These instances are the same

as the foregoing challenges to section 2907.01

(F) .

A150

quotation ofthose guidelines. The

court's familiarity with the Miller

"examples" must be inferred also from the

fact that the court refers to p. 25 of the

Miller opinion (on which page the Miller

“examples” are set forth). The court

stated:

In that case, the United States

Supreme Court, at pp. 24-25,

described the permissible scope

of state regulation of obscenity and

the three-prong inguiry to be

adopted by the trier of fact as

follows: [guidelines thereupon

quoted].

56 Ohio St. 2d at 357-58, 384 N.E.2d at

259. | As prologue to the court's state-

ment of its intention to read the Miller

guidelines in pari materia with section

2907.01(F), the court next stated:

In summary, appellants allege

in effect that the statute not

only has not been "limited, as

written,” in light of the Miller

guidelines but also is incapable

of a “narrowing construction"

in conformity with that decision.

We disagree.

Al51

The United States Supreme

Court did not intend for every

state legislature to rewrite

its obscenity statutes as a

result of the Miller decision.

As indicated, an “authoritative

construction of applicable

state law limiting the regulation

of obscenity by the guidelines

in that decision would be

constitutionally sufficient.”

Id., at 358, 384 N.E.2d at 259.

The Ohio Supreme Court then noted

that following the Miller mandate it

“was faced with a construction of the

predecessors to the statutes under

attack in the present case, R.C. 2905.

34 and 2905.35,* immediately following

the Miller decision in State, ex rel.

4

Effective January 1, 1974, Ohio adopted a new

criminal code including a rewriting of its

obscenity laws. The predecessor section O.R.C.

2905 .34(A) was substantially readoptcd, but one

subparagraph, as O.R.C. 2907.01(F), was added.

Thus for present purposes, the predecessor

definition of obscenity, 0.R.C. 2905.34, and

the present definition of obscentiy, 0.R.C.

2907.01(F), have substantially the same wording.

Both are written in disjunctive rather than

conjunctive language.

A152

Sensenbrenner, v. The Book Store, (1973),

35 Ohio St. 2d 220, and State, ex rel.

Keating, v. Vixen, (1973), 35 Ohio St,

2d 215." Reviewing those decisions,

the court observed that in Vixen at p.

219 it had held “that the statutory

definitions 'comport with the standards

enunciated in Miller'” and that similar

language was found in Sensenbrenner at

p. 221 where it indicated:

It is apparent that, if these

causes were remanded to the

Court of Common Pleas, the trier

of the facts, given the standards

expressed in Miller and the

provisions of R.C. 2905.34 as

guides for determining the issue

of obscenity, could come to no

other conclusion than the one

reached in the first instance.

Id., at 358, 384 N.E.2d at 260.

Continuing, the court observed that

"(t]he application of the Miller guide-

lines to Ohio's obscenity law was also

noted by this court in State, ex rel.

Ewing, v. Without a Stitch (1974), 37

A153

Ohio St. 2d 95." . The court then held:

The essence of these three Ohio

decisions was not that the wording

of B.C. 2908. ~ 34(A) (1) br oc y

v

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