# Appendix — Sovereign News Co. v. Corrigan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0214%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 883 ## Text 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0214%3A2. Public record. Not legal advice.