Amicus Curiae Brief — Brockett v. Spokane Arcades, Inc.

‘ee - Supreme Court, U.S.

FILED

us ‘OY 15 64

Nos. 84-143 & 84-28 | ee

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

KENNETH EIKENBERRY, in his official capacity as

Attorney General for the State of Washington, ef a/.,

Appellants,

J-R DISTRIBUTORS, INC., ef ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE

IN SUPPORT OF APPELLANTS

CONCERNED WOMEN FOR AMERICA

EDUCATION AND LEGAL DEFENSE

FOUNDATION

Michael P. Farris

General Legal Counsel .

Office and Post Office Address:

122 C Street, N.W., Suite 800

Washington, D.C. 20001

(202) 628-3014

CASILLAS PRESS INC. - 1717 K STREET NW WASHINGTON DC - 223-1220

(i)

QUESTION DISCUSSED

Is it unconstitutional to include the word “lust” in a

statutory definition of “prurient interest?”

QUESTION DISCUSSED

TABLE OF AUTHORITIES

I.

III.

IV.

(iii)

TABLE OF CONTENTS

INTEREST OF AMICUS AND EXPERIENCE

INS abe clvSecnnecsegocdsoccccccccess

THE DRAFTSMAN’S RATIONALE

FOR DEFINING THE TERM “PRURIENT

CONSTITUTIONAL DECISIONS SHOULD

NOT BE PREMISED ON THE DICTIONARY

THE LEGISLATIVE DRAFTSMAN HAS

GEE. Sevcweccwscceksdsiccncccccccccccs

THE COURT OF APPEALS FAILED TO

RECOGNIZE THAT THE TERM “PRURIENT”

IS ONLY ONE ELEMENT NECESSARY TO

ACHIEVE A FINDING OF OBSCENITY .........

(iv)

TABLE OF AUTHORITIES

Cases:

J-R Distributors, Inc. v. Eikenberry,

725 F.2d 482 (1984) ....... cece cece cece ee eeeeeeeees

Miller v. California,

413 U.S. 15, 92 S.Ct. 2607, 37 L.Ed. 2d 419 (1973) ......

Roth v. United States,

354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957) ....

Spokane Arcades, Inc. v. Brockett,

631 F.2d 135 (9th Cir. 1980); aff'd, 454 U.S. 1022,

102 S.Ct. 557, 70 L.Ed.2d 468 (1981) ............2545.

United States v. Bagnell,

679 F.2d 826 (1ith Cir. 1982) ........... cece eee ee eeee

Books and Treatises:

The Oxford English Dictionary

GmmeRRaGE, BEGED onc ccc cccccccccccrcccvcvescocces

The Random House Dictionary of the English Language

(Unabridged, 1966) 2... ccccccccccccccccccccccccccs

Webster’s New International Dictionary

GBR n TEED co cvecdscccccnccccscsccccccccccscccess

Webster’s New International Dictionary

(Unabridged, 3d ed. 1976) ........ 2... cece cece e eens

Webster’s New International Dictionary

(Unabridged, 3d ed. 1976) ......... 2c ccc ee eee eeeees

Webster’s New Twentieth Century Dictionary

(Unabridged 2d ed., 1979)... 0... cece cece cece eee

Newspaper Articles:

Spokane Daily Chronicle, March 17, 1977, p.3,

“Films Held Not Obscene: More Prosecutions Likely” .. .

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1984

Nos. 84-143 & 84-28

KENNETH EIKENBERRY, in his official capacity as

Attorney General for the State of Washington, ef al.,

Appellants,

J-R DISTRIBUTORS, INC., et ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE

IN SUPPORT OF APPELLANTS

INTEREST OF AMICUS AND EXPERIENCE

OF COUNSEL

Concerned Women for America Education and Legal

Defense Foundation is a national, non-profit membership

organization with over 500,000 members. At its annual

convention held in Washington, D.C., on September 14

and 15, 1984, it adopted the following resolution:

We call for the strict enforcement of laws against

pornography. Crimes against women and chil-

dren are ever increasing as a result of the an-

tisocial decadence of the peddlers of obscenity.

2

Counsel of record for this amicus brief is General Legal

Counsel for Concerned Women for America. He was pre-

viously in practice in Olympia, Washington. Counsel was

the actual draftsman of the Washington state law before

the court in this case, House Bill 626. Counsel drafted the

definition of “prurient interest” which is the principal con-

stitutional issue before this court.

II

THE DRAFTSMAN’S RATIONALE FOR DEFINING

THE TERM “PRURIENT INTEREST”

As indicated by the Ninth Circuit Court of Appeals in

its opinion below, J-R Distributors, Inc. v. Eikenberry,

725 F.2d 482, 484 (1984), House Bill 626 was indeed an ef-

fort to refine the 1977 anti-pornography initiative adopted

by the voters of Washington state which was subsequently

declared unconstitutional. Spokane Arcades, Inc. v.

Brockett, 631 F.2d 135, 137-39 (9th Cir. 1980); aff'd, 454

U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981).

The definition of the term “prurient interest” originated

from a different legal situation, however. In various ob-

scenity prosecutions in the state, jurors were expressing

confusion over the term “prurient interest.” Counsel for

the defendants in such cases were arguing that “a shame-

ful or morbid interest in sex” referred to “such things as

bestiality, sado-masochism and sexual exploitation of

children” and not heterosexual activity between adults.

See, Spokane Daily Chronicle, March 15, 1977, p. 3,

“Films Held Not Obscene, More Prosecutions Likely,”

attached as Appendix A. Similar legal arguments have

been noted in other cases. See, e.g., United States v.

Bagnell, 679 F.2d 826, 836 (11th Cir. 1982).

3

The purpose of this definitional section was to end juror

confusion and to aid trial judges in defining the term

“prurient interest” in ordinary language consistent with

both the ordinary meaning of the word “prurient” and the

decisions of this Court.

When drafting this term, counsel first reviewed the deci-

sions of this Court. The decision of Roth v. United States,

354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957), of

course, contains the original definition of that term. This

court noted that an example of material appealing to the

“prurient interest” was “material having a tendency to ex-

cite lustful thoughts.” Roth, 354 U.S. at 487 n. 20, 77

S.Ct. at 1310 n. 20. Review of later cases of this Court in-

dicated nothing to this draftsman which would render this

language in Roth to be inappropriate.

House Bill 626 was drafted in the law library of the

Supreme Court of the State of Washington. This drafts-

man then turned to the principal unabridged dictionary in

that library for assistance with the ordinary meaning of

the word “prurient.” This dictionary was Webster’s New

International Dictionary (Unabridged, 3d ed. 1961). The

key definition in said dictionary which was used was

“tending to incite lasciviousness.” This dictionary defines

lascivious as “inclined to lechery, lewd, or lustful tenden-

cies.”

Based on this Court’s footnote in Roth and the dic-

tionary definition of both “prurient” and “lascivious,” this

draftsman wrote the definition of “prurient interest” now

found in House Bill 626, to wit: “that which incites las-

civiousness or lust.” This definition seemed to fit all the

objectives of drafting: compliance with the rulings of this

Court, adherence to the dictionary definition, and the use

of ordinary language to end juror confu’ 9n.

4

It is, of course, the inclusion of the single word “lust” in

House Bill 626 which was the basis of the Ninth Circuit’s

ruling that the bill was unconstitutional.

CONSTITUTIONAL DECISIONS SHOULD NOT BE

PREMISED ON THE DICTIONARY THE

LEGISLATIVE DRAFTSMAN HAS AVAILABLE

Apparently the Ninth Circuit had the 1976 version of

Webster’s New International Dicitonary (Unabridged, 3d

ed.), while the Washington State Supreme Court law

library contained the 1961 version. Such a fact should not

give rise to a constitutional distinction rendering a law of

the State of Washington unconstitutioinal on such a slen-

der reed.

If one checks the unabridged dictionaries in the United

States Supreme Court library one will discover that these

dictionaries would lead a draftsman to the same conclu-

sion as was reached while drafting in the State of Wash-

ington.

This Court’s library contains the following: The Oxford

English Dictionary (Unabridged, 1933); “prurient: given

to the indulgence of lewd ideas; impure minded; charac-

terized by lasciviousness of thought or mind”; “lascivious:

inclined to lust, lewd, wanton; inciting to lust or wanton-

ness.” Webster’s New Twentieth Century Dictionary

(Unabridged, 2d ed. 1979); “prurient: inclined or disposed

to lewdness or lascivious thoughts; having lustful ideas or

desires.” The Randon House Dictionary of the English

Language (Unabridged, 1966); “prurient: having, inclined

to have, or characterized by lascivious or lustful thoughts,

desires, etc.; causing lasciviousness or lust.” Webster's

New International Dictionary (2d ed., 1945); “prurient: of

5

person’s having itching, morbid or lascivious longings”;

“lascivious: [see lust] wanton, 'ewd, lustful.”

It is clear then that every unabridged dictionary avail-

able in this Court’s library defines the term “prurient” to

mean lasciviousness and lust, either by including both

terms in the primary definition, or by defining the term

“lascivious” to include the word “lust.”

The Ninth Circuit found no constitutional problem in

House Bill 626 by the inclusion of the word “lascivious-

ness” in the definition of “prurient interest.” It seems

remarkable then that it would be unconstitutional to use

the word “lust” as an additional word when it is beyond

debate that the terms “lust” and “lascivious” are inter-

changeable synonyms.

Some members of the public might have trouble giving a

specific definition of the term “lasciviousness.” There can

be no constitutional violation by merely adding a more

common synonym to give clarity to the word lasciviousness.

Simplicity in legislative drafting should be recognized as a

desirable goal, not an unconstitutional action.

There is nothing in any decision of this Court which dic-

tates that the use of the Roth footnote or the ordinary dic-

tionary definition of the word “prurient” is constitutional-

ly impermissible. It boggles the imagination to suggest that

the draftsmen of the First Amendment intended any such

definitional nitpicking.

6

THE COURT OF APPEALS FAILED TO

RECOGNIZE THAT THE TERM PRURIENT IS

ONLY ONE ELEMENT NECESSARY TO ACHIEVE

A FINDING OF OBSCENITY

It should be noted at the outset that the members of

Concerned Women for America do not share the Ninth

Circuit’s enthusiasm for “good, old-fashioned, healthy

lust.” 725 F.2d at 492. Apparently the court of appeals’

zealous regard for lust blinded their legal judgment. the

lower court failed to even note that appeal to the prurient

interest is only one element necessary to a finding of ob-

scenity under House Bill 626. As dicated by this Court’s

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

2607, 37 L.Ed. 2d 419 (1973), House Bill 626 requires that

all of the following elements be proven in order to sustain

a finding of obscenity:

1. The average person, applying contemporary com-

munity standards, would find [the material], when con-

sidered as a whole, appeals to the prurient interest; AND

2. [the material] depicts or describes patently offensive

representations of or descriptions of:

(a) ultimate sex acts, normal or perverted actual or

simulated; or

(b) masturbation, fellatio, cunnilingus, bestiality, ex-

cretory functions, or lewd exhibtion of the genitals or

genital area; or

(c) violent or destructive sexual acts, including but

not limited to human or animal mutilation, dismember-

ment, rape or torture; AND

3. which when considered as a whole, and in the context

in which it is used, lacks serious literary, artistic, political

or scientific value.

-

A mere finding that the prurient interest or lustfulness is

present will not suffice. All three elements must be pre-

sent. The material must appeal to the prurient interest and

contain some type of patently offensive representation of

the type of ultimate sex acts listed and lack serious literary,

artistic, political, or scientific value.

The suggestion that “it might be necessary to hale into

court our leading couturiers, perfumers and manufac-

turers of soft drinks, soap suds and automobiles,” [725

F.2d at 492] is ludicrous. A mere finding that an appeal to

lust is a part of a presentation is not enough. Your amicus

is not aware of any perfume ads or soft drink ads which

contain patently offensive representations of ultimate sex

acts of the type listed in House Bili 626.

Simply stated, House Bill 626 does not outlaw “good,

old-fashioned, healthy lust.” It merely outlaws patently

offensive presentations of ultimate sex acts, which appeal

to the lustful interest in sex, and which lack serious

literary, artistic, political, or scientific value.

The only thing “overbroad” in this case is the imagina-

tion of the Ninth Circuit which conjures up cases against

Pepsi Cola and Chanel No. 5. Until Pepsi and perfume are

peddled with patently offensive ultimate sex acts as part of

their message, there is no danger from House Bill 626.

Vv

CONCLUSION

The State of Washington is entitled to outlaw obscene

presentations as defined by this Court. In drafting its law,

it is not constitutionally impermissible to rely on this

Court’s definition in Roth. Neither is it unconstitutional to

use an ordinary dictionary definition of the term prurient

to end confusion on the part of jurors.

It is time to end the nitpicking in the area of obscenity

law. The presence of the word “lust” is constitutionally

permissible. The people of the State of Washington have

been trying since 1977 to create a constitutionally sound

obscenity law. According to the Ninth Circuit, this effort

falls one word short. This Court should reverse this un-

warranted interference in the legitimate exercise of legis-

lative authority by the people of the State of Washington

and their elected officials.

Respectfully submitted,

CONCERNED WOMEN FOR AMERICA

EDUCATION AND LEGAL DEFENSE

FOUNDATION

MICHAEL P. FARRIS

General Legal Counsel

Office and Post Office Address:

122 C Street, N.W., Suite 800

Washington, D.C.20001

(202) 628-3014

November 12, 1984

9

IN THE UNITED STATES SUPREME COURT

Nos. 84-143, 84-28

KENNETH EIKENBERRY, in his official capacity as

Attorney General for the State of Washington, ef a/.,

Appellants,

J-R DISTRIBUTORS, INC., ef ai.,

Appellees.

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Brief of Amicus

Curiae has been served upon counsel by placing the same

in the United States mail, postage prepaid, properly ad-

dressed this 15th day of November, 1984, to:

Jeffrey C. Sullivan

Prosecuting Attorney

329 Yakima County Court House

Yakima, WA 98901

Fred Andrews

City Attorney

Yakima City Hall

2nd and B. Streets

Yakima, WA 98901

10

Richard C. Robinson

Assistant Corporation Counsel

James C. Sloane

Corporation Counsel

5th Floor, City Hall

Spokane, WA 99201-3326

David A. Saraceno \

Deputy Prosecuting Attorney

Donald C. Brockett

Prosecutring Attorney

Spokane County Court House

1115 West Broadway

Spokane, WA 99260

Norm Maleng

Prosecuting Attonrey

Charles P. Hamilton III

Deputy Prosecuting Attorney

E 550 King Cuonty Court House

Seattle, WA 98104

James H. Lowe, Esq.

Bogle & Gates

The Bank of California Center

Seattle, WA 98164

Carl Maxey, Esq.

The Maxey Law Firm

1303 West Broadway

Spokane, WA 99201

Jack Burns, Esq.

Hubbard, Burns & Meyer

10940 NE 33rd Place

Suite 107

Bellevue, WA 98004

Robert Eugene Smith, Esq.

16133 Ventura Blvd.

Suite 1230

Encino, CA 91436

Kenneth Eikenberry

Attorney General

Christine O. Gregoire

Deputy Attorney General

Temple of Justice

Olympia, WA 98504

Charles Stixrud, Esq.

4202 Wallingford Ave. N.

Seattle, WA 98103

John Weston, Esq.

Brown, West & Sarno

433 North Camden Dr.

Suite 433

Beverly Hills, CA 90210

/s/

MICHAEL P. FARRIS

Attorney for Amicus Curiae

Concerned Women for America

APPENDIX A

The Appendix below was taken from the Spokane, Washington Daily

Chronicle, March 15, 1977, Section 1, Page 3.

Films Held Not Obscene;

More Prosecution Likely

By JOHN WEBSTER

After six hours of deliberation a four-man, eight-

woman Superior Court jury last night found that the films

“Deep Throat” and “The Private Afternoon of Pamela

Mann” are not obscene.

The jury acquitted the operators of the Dishman

Theater, Gaiety Theatres, Inc., and Roger H. Forbes of

Seattle, Gaiety’s president, of three counts of exhibition of

an obscene motion picture, stemming from the two films’

showing last year at the Dishman.

The state may not appeal the verdict. Under the law, the

prosecution never has a right to appeal a verdict of inno-

cent, although a verdict of guilty may be appealed by a

defendant.

However, Pros. Atty. Donald C. Brockett said today

that, despite the verdict, Gaiety Theatres and Forbes will

be prosecuted on two more recent charges of exhibition of

an obscene motion picture.

Those charges, to which the defendants pleaded inno-

cent on Friday, are based on the Jan. 25 showing of the

films, “The Evil Ways of Love” and “Behind the Green

Door” at the Dishman, which is leased by Gaiety Theatres.

2a

An April 25 Superior Court trial has been scheduled on

the two charges.

William J. Powell, a Spokane attorney who represented

Gaiety Theatres, said he talked with some of the jurors

after the verdict was returned at 10:30 last night and was

told the panel decided the films were not obscene in that

the two movies, when considered as a whole, did not ap-

peal to the prurient interest of an average person applying

contemporary community standards.

The “prurient interest” test was one question the jury

had to consider to rule whether the films were obscene.

Powell said jurors told him they were somewhat confus-

ed by Lally’s instruction to them about the meaning of

“prurient interest.” The jurors asked Judge John J. Lally

to clarify the prurient interest instruction, so at 10 p.m. he

read a revised instruction.

The modified instruction said prurient interest “refers to

material having a tendency to excite lustful thought, or

stated another way, prurient refers to a shameful or mor-

bid interest in nudity or sex.”

Less than 30 minutes after receiving that instruction, the

jury returned its verdict.

Other tests the jury had to consider in determining the

obscenity issue were whether the films portrayed sexual ac-

tivity in a “patently offensive” way, and whether the films,

when considered as a whole, lacked any serious literary,

artistic, political or scientific value.

All three of those factors had to be true for a guilty ver-

dict.

Forbes was represented by Spokane attorney Bryan

Harnetiaux and Robert Smith of Atlanta. Smith has

3a

argued before the U.S. Supreme Court about 12 times in

obscenity cases, and is regarded as a specialist in the field

of law of obscenity.

In his final argument to the jury, Smith said it is the

community standard here that such things as bestiality,

sado-masochism and sexual exploitation of chiidren are

obscene and should be suppressed.

But “Deep Throat” and “Pamela Mann” do not portray

such acts, Smith told the jury, adding, “the kinds of sex

depicted here may not be for us, but it is important to a lot

of people in our community.”

Discussing the social ideal of a harmonious marriage

and obedient children, and divorce rates which indicate

many do not reach that ideal, Smith turned to the subject

of community values as to what is acceptable in X-rated

movies.

“When we talk about community standards, we talk

about what is, not some unattainable goal,” the attorney

said.

He had presented testimony that films such as “Deep

Throat” and “Pamela Mann” are of value in therapy for

persons with sexual dysfunctions, and he told the jury that

“if a film is of value to any segment of our society you

must acquit, like it or not.”

Repression is never good for the sexual health of the

community,” Smith argued.