Reply Brief of Petitioner — Thevis v. United States

SUBJECT INDEX

Page

Petitioner’s Reply to Memorandum for the United

States in Opposition to Petition for a Writ of

REISS SSRI Pec ARRAN aes Sa vU eT Oe 1

RE TEENS BEARER: Bese ek Ae CO eco 8

Appendix A. Commonwealth vs. George C. Hor-

ton (and a Companion Case) .............. App. p. 1

Hennessey, J. (COMCUITING) ...............0c..cesesccsrseenes 11

TABLE OF AUTHORITIES CITED

Cases Page

Commonwealth v. Horton, .... Mass. ... (No. N-

15,261, April 23, 1974)

Hamling, et al. v. United States, No. 73-507

Paris Adult Theatre I v. Slaton, 413 U.S. 49

Smith v. Goguen, 414 USS. ..... 94 S.Ct. 1242

United States v. Reidel, 402 U.S. 351

United States v. Thevis, 484 F.2d 1149 (5 Cir.

1973) 2

Statutes

United States Code, Title 18, Sec. 1462

United States Constitution, First Amendment

IN THE

feaeeiis Court of the United States

October Term, 1973

No. 73-1075

MICHAEL G. THEVis and PEACHTREE News CoMPANY,

INC.,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

_ On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit.

Petitioner’s Reply to Memorandum for the United States

in Opposition to Petition for a Writ of Certiorari.

1. In the Petition for a Writ of Certiorari, petition-

er argued that Title 18 United States Code §1462, on

its face and as construed and applied to petitioner’s

pre-Miller conduct, is unconstitutionally vague because

the statute concededly does not contain a des¢ription

of the specific sexual conduct Miller held was constitu-

tionally mandated, and prior to June 21, 1973 the

Statute had not received an authoritative construction

reading the necessary terminology into the statute.

The Government, relying on Roth, denies that $1462

is vague on its face. [Memo. for U.S., 2-3]. The Gov-

ernment ignores the fact that the author of Roth has

now come to the conclusion that “the approach initi-

‘con

ated 15 years ago in Roth . . . and culminating in [the

June 21, 1973 decisions] cannot bring stability to this

area of the law without jeopardizing fundamental First

Amendment values. . . .” Paris Adult Theatre I v. Slaton,

413 U.S. 49 (Brennan, J., dissenting). In concluding

that the obscenity statutes—federal and state—are un-

constitutionally vague, Justice Brennan stated: “As a

result of our failure to define standards with predict-

able application to any given piece of material, there

is no probability of regularity in obscenity decisions

by state and lower federal courts.”

The court below recognized that §1462, on its face,

failed to meet the due process requirements of Miller.

“On its face, this statutory terminology (‘obscene, lwed,

lascivious, or filthy’) does not contain the specifics

required by Miller. . . . Miller requires that elements

of the definition be a part of the statute.” United States

v. Thevis, 484 F.2d 1149, 1155 (5 Cir. 1973).

Nevertheless, the Government insists that the naked

words of §1462 meet the requirements of Miller. The

Government is plainly in error.

In Commonwealth v. Horton, .... Mass. .... (No. N-

15,261, April 23, 1974), the Massachusetts Supreme

Judicial Court examined its obscenity statute and con-

cluded that it was unconstitutionally vague, in light of

Miller. The Massachusetts statute, like §1462, utilizes

the tired words “obscene, indecent”, etc. Justice Wilkins,

speaking for the court, held that these words, standing

alone, were plainly constitutionally insufficient. Justice

Wilkins also concluded that the Massachusetts statute

had not received an authoritative construction “in a

way which has ‘specifically defined’ the sexual conduct

1A copy of the opinion is attached as APPENDIX A.

=

whose portrayal is barred by the statute”. Accordingly,

he continued, “the opportunity is not fairly available to

us . . . to conclude that the constitutional requirements

of specificity have been met by our decisions prior to

the Miller decisions.” Horton not only held that the

Massachusetts obscenity statute was unconstitutional as

applied to pre-Miller conduct, but also held that the

Statute was unconstitutional as applied to post-Miller

conduct. “We decline to undertake now to furnish, even

on a prospective basis, a judicial interpretation of that

sexual conduct which § 28A provides should not be

portrayed. To do so would require us to engage in a

function which we . . . have been traditionally reluctant

to perform.” The court declined “further to engage in

the function of saving judicially a statute which is of

great ambiguity on its face”.

The task of writing an obscenity statute, the court

said, was for the Legislature, not the Judiciary. “. . .

[I}f there is to be regulation in the Commonwealth

in the area of the sale or showing of pornographic works

to adults, it must be achieved by explicit new legisla-

tion.” The court stated that the Legislature is in a bet-

ter position than the court to deal with the subject com-

prehensively. The Legislature might conclude, the court

said, “that the expense in time and funds does not war-

rant enforcement of constitutionally permissible re-

straints in all instances.”

Justice Hennessey, concurring, also emphasized that

the Constitution requires specificity in an obscenity stat-

ute and that the Massachusetts statute clearly “contains

no such specifics in its wording”. He stated that for

some 17 years, “confusion has reigned as to the validity

and effectiveness of obscenity statutes. . . . Upholding

the statute here through what could only be imper-

ee ae

missible and excessive straining on our part might add

- . . Ummecessary uncertainty and confusion. . . .”

Justice Hennessey stated that it was a legislative option

to “determine whether the Commonwealth should or

should not have a new obscenity statute or statutes.”

Justice Hennessey rejected the Commonwealth’s argu-

ment—also made by the Government herein—that the

conviction should be affirmed because the publica-

tions were “hard-core pornography” and obscene under

any standard. The phrase “hard-core pornography”, he

said, “is little more than a cliché which has not been

defined in any case, nor has it apparently been a

premise for the affirmation of even one judgment of

guilt.”

Justice Hennessey took note of the “abundant empiri-

cal evidence that the community has tolerated increas-

ingly permissive displays of pornographic literature and

X-rated movies”. Finally, Justice Hennessey suggested

that Miller is “probably transient.”* In the area of con-

stitutional-criminal law, Justice Hennessey said, “all

concerned are entitled to a substantial measure of

stability and predictability.”

Justice Kaplan, concurring, agreed that the “tired

words” of the Massachusetts statute do not have the

“magical property” necessary to save it from constitu-

tional infirmity. Justice Kaplan went on to state that

“[p]ersons with a reflective or experimental turn of

mind might welcome an opportunity to observe how

New England communities would carry on over a period

of time without the assistance of suppressing law.” Jus-

2In oral t in Hamling, et al. v. United States, No.

73-507, Mr. Justice Brennan said: “Is it possible, Mr. Tuttle,

that all this discussion suggests that perhaps Miller is not the last

word in the definition of obscenity?”

a

tice Kaplan expressed the view that under the Massa-

chusetts Declaration of Rights the Commonwealth might

be “without power to intrude on the choice of an adult

who knowingly and willingly seeks a pornographic

work. . . . If this view should prevail, our courts

would be relieved of the anomalous duty of serving as

literary and artistic constables, and the Commonwealth

would be spared the phenomenon of judges (very few

of them women) trying as official censors to assess the

incitive or emetic qualities of movies or books that a

considerable fraction of the population, pursuing their

own tastes, desire to see or read. The reallocation of

judicial resources to tasks that judges are better

schooled to handle might be thought to be in itself a

distinct gain.”

Commonwealth vy. Horton applied the teachings of

this Court in Smith v. Goguen, 414 USS. ----» 94 S.Ct.

1242, where the Massachusetts flag desecration statute

was declared unconstitutionally vague. Justice Powell,

speaking for the Court, stated that the due process

doctrine of vagueness “requires legislatures to set rea-

sonably clear guidelines for law enforcement officials

and triers of fact in order to prevent ‘arbitrary and

discriminatory enforcement’. Where the statute’s literal

scope, unaided by a narrowing state court interpreta-

tion, is capable of reaching expression sheltered by the

First Amendment, the doctrine demands a greater de-

gree of specificity than in other contexts.” In Smith y.

Goguen, the Court found that the Statutory language

“publicly . . . treats contemptuously the flag of the

United States . . .” could reach protected speech. Be-

cause at the time of the charged conduct the statute

was “without the benefit of judicial clarification”. it

was stricken on grounds of vagueness.

ilies

Justice Powell noted that the statute was attacked on

vagueness grounds because “[w]hat is contemptuous

to one man may be a work of art to another.” In

light of the “widely varying attitudes and tastes for dis-

playing something as ubiquitous as the United States

flag”, the statutory language was found inadequate “to

draw reasonably clear lines” between criminal and

non-criminal treatment of the flag. “Given today’s tend-

encies to treat the flag unceremoniously”, the statute

fails to satisfy the standards of due process. In Goguen,

the Court found that the statute violated the due process

requirement “that a legislature establish minimal guide-

lines to government law enforcement. It is in this re-

gard that the statutory language under scrutiny has its

most notable deficiencies. . . . Statutory language of . . .

a standardless sweep allows policemen, prosecutors and

juries to pursue their personal predilections. Legisla-

tures may not so abdicate their responsibilities for set-

ting the standards of the criminal law.” The Court

stated that because flag contempt “takes so many forms

changing from one generation to another and often dif-

ficult to distinguish in principle, a legislature should

define with some care the flag behavior it intends to

outlaw.”

The Court’s reasoning in Smith v. Goguen has spe-

cial relevance to the case at bar. All that was said

about the vagueness of the Massachusetts “flag con-

tempt” statute is equally applicable to the federal ob-

scenity statute at bar here.

*For many years, it has been recognized that “what is obscene

to one man may be a work of art to another.”

a ie

2. In United States v. Reidel, 402 U.S. 351, 357,

Justice White, in a postscript, stated:

“It is urged that there is developing sentiment

that adults should have complete freedom to pro-

duce, deal in, possess and consume whatever com-

municative materials may appeal to them and that

the law’s involvement with obscenity should be

limited to those situations where children are in-

volved or where it is necessary to prevent imposi-

tion on unwilling recipients of whatever age. The

concepts involved are said to be so elusive and the

laws so inherently unenforceable without extrava-

gant expenditures of time and effort by enforce-

ment officers and the courts that basic reassess-

ment is not only wise but essential. This may prove

to be the desirable and eventual legislative course.

But if it is, the task of restructuring the obscenity

law lies with those who pass, repeal, and amend

Statutes and ordinances. Roth and like cases pose

no obstacle to such developments.”

Since §1462 is deficient on its face, the Legislature,

and not this Court, should undertake the task of “re-

structuring the obscenity laws”.

3. Since the Government relies on its Brief in Ham-

ling, et al. v. United States, No. 73-507, to answer

petitioner’s other contentions, petitioner herein similarly

relies on the petitioners’ Briefs in Hamling as well as

on his Petition for a Writ of Certiorari herein.

‘alla

Conclusion.

For the foregoing reasons, a Writ of Certiorari

should issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Cir-

cuit.

Respectfully submitted,

STANLEY FLEISHMAN,

Attorney for Petitioner

Michael G. Thevis.

SAM ROSENWEIN,

Of Counsel.

APPENDIX A.

Commonwealth vs. George C. Horton

(and a Companion Case’).

WILKINS, J. The defendant Horton, an employee

in a Quincy bookstore, was indicted for the sale in

August, 1971, of “certain obscene and impure maga-

zines entitled ‘Love Theme’ and ‘Young Stuff.’” The

defendant O’Brien, the owner of the bookstore, was in-

dicted on the same day for possession of “certain ob-

scene, indecent, or impure magazines . . . [the same

magazines] with intent to sell [them].” The cases

were tried together in May, 1972, and the defendants

were found guilty. Each defendant was placed on pro-

bation for one year; O’Brien was fined $1,000.

The defendants claimed various exceptions at trial

but have argued before us, in connection with their

motion for directed verdicts, only that G. L. c. 272,

§ 28A,’ is unconstitutionally vague and overbroad and

that it would be unconstitutional for this court now to

construe § 28A so as to be applicable to acts com-

mitted by them in 1971. Basically the defendants argue

that § 28A does not satisfy the First Amendment stand-

1Commonwealth vs. Richard O’Brien.

2General Laws c. 272, § 28A, as appearing in St. 1959, c.

492, § 2, reads as follows: “Whoever imports, prints, publishes,

sells or distributes a pamphlet, ballad, printed paper, phono-

graphic record, or other thing which is obscene, indecent or im-

, Or an obscene, indecent or impure print, picture, figure,

or a or os coy a or has oe his

possession any such pamphlet, ad, prin paper, no-

graphic vedio J obscene, indecent or impure print, picture, figure,

image or other thing, for the “a tae sale, exhibition, loan or

y impri

circulation, shall be punished sonment in the state prison

for not more than five years or in a jail or house of correction

for not more than two and one half years, or by a fine of not

less than one hundred dollars nor more than five thousand dollars,

or by both such fine and imprisonment in jail or the house of

correction.”

ny

ards prescribed in Miller v. California, 413 U.S. 15

(1973), decided on June 21, 1973; that our decisions

have not interpreted § 28A so as to meet the constitu-

tional requirements set forth in the Miller case; and

that it would be improper for this court now to inter-

pret § 28A retroactively so as to import into § 28A

that specificity which under the Miller case must exist

either in the words of the statute or in authoritative

judicial construction of the statute. Miller v. California,

supra, 24.

The defendants were tried under the so called Roth-

Memoirs standard. Roth v. United States, 354 USS.

476 (1957). “John Cleland’s Memoirs of a Woman of

Pleasure” v. Attorney Gen. of Mass., 383 U.S. 413

(1966). That standard required three elements to be

established in order to obtain a constitutionally justi-

fied obscenity conviction. The prosecution had to es-

tablish that “(a) the dominant theme of the material

taken as a whole appeals to a prurient interest in sex;

(b) the material is patently offensive because it affronts

contemporary community standards relating to the de-

scription or representation of sexual matters; and (c)

the material is utterly without redeeming social value.”

“John Cleland’s Memoirs of a Woman of reewre v.

Attorney Gen. of Mass., supra, 418.

No Justice of the United States Supreme Court now

endorses the Roth-Memoirs test as the measure of First

Amendment protection in obscenity cases. See Miller v.

California, supra, 23; Paris Adult Theatre I v. Slaton,

413 U.S. 49, 73 (1973) (Brennan, J., dissenting). A

bare majority of those Justices have arrived at a new

set of basic guidelines. Those guidelines are intended to

define the permissible scope of State statutes designed

to regulate works which depict or describe sexual con-

oo We

duct. Miller v. California, supra, 24.* The applicable

State law, “as written or authoritatively construed,”

must specifically define the sexual conduct whose de-

piction or description is interdicted. Miller v. Califor-

nia, supra, 24. The new basic guidelines, which also

set forth a three-pronged test, call for the trier of fact to

determine “(a) whether ‘the average person, applying

contemporary community standards’ would find that the

work, taken as a whole, appeals to the prurient in-

terest . . .; (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.” Emphasizing that

it is not its function to propose regulatory schemes for

the States, the court gave “a few plain examples” of

what a State statute could define for regulation under

part (b) of the new guidelines.‘

Applying the Miller standards to G. L. c. 272, § 28A,

it is manifest that § 28A does not define the sexual

conduct whose display or description is intended to be

prohibited. The Miller opinion, however, recognizes

that authoritative judicial construction of an obscenity

statute may fulfill the constitutional requirement that

the State law specify that sexual conduct which is pro-

*We note that the four dissenting Justices would extend First

Amendment protection to the publications involved here, which

were sold to consenting adults. Miller v. California, supra, 37

(Douglas, J., dissenting). Paris Adult Theatre I v. Slaton, 413

U.S. 49, 73, 113 (1973) (Brennan, J., dissenting, joined by

Stewart and Marshall, JJ.).

‘The examples given are (Miller v. California, supra, 25):

“(a) Patently offensive representations or descriptions of ultimate

sexual acts, normal or perverted, actual or simulated. (b) Patent-

ly offensive representations or descriptions of masturbation, ex-

cretory functions, and lewd exhibition of the genitals.”

nt

hibited. Some State courts in post-Miller decisions have

been able to sustain obscenity statutes by concluding

that previous judicial construction of the applicable

statute has already provided the specificity required by

the Miller case." Other decisions have read into the

applicable obscenity statute those definitions of specific

sexual conduct which appear in the Miller opinion

(see fn. 4 above).* Some of the decisions upholding

5Rhodes v. State, 283 So. 2d 351, 355-356 (Fla. 1973).

State ex rel. Wampler v. Bird, 499 S. W. 2d 780, 784 (Mo.

1973). People v. Heller, 33 N. Y. 2d 314, 327, 329 (1973).

State ex rel. Keating v. A Motion Picture Film Entitled “Vixen,”

35 Ohio St. 2d 215 (1973). Price v. Commonwealth, Va.

(1974) (14 Cr. L. = 2379 [1974}). People v. Enskat,

33 Cal. 3d 900, 908 (1973 sub nom.

Enskat v. (March 19, 1974) 42 U. S. L. Week 3526.

See Jenkins v. State, 230 Ga. 726 (1973), jurisdicti

noted (December 10, 1973) 42 U. S. L. Week 3351.

Note is taken of the decision of the Appeals Court in Com-

monwealth v. Claflin, ... Mass. App. Ct. .... (1973) .... (Mass.

] 475), decided on July 11, 1973,

3

9

i

s

3

although prior to the decision in the Miller case. The

Claflin case was decided on the Roth-Memoirs standard.

Appeals Court that the did

"State cases: Gibbs v. State, Ark. .... (1974) (504 S.

2d 719 [1974]). State v. J-R Distribs. Inc. ... Wash. 2d. ....,

(1973) (512 P. 2d 1049, 1060 [1973]), cert. sub

nom. J-R Distribs. Inc. v. Washington, (December 17, 1973) 42

U. S. L. Week 3391. West v. State, .... S. W. 2d .. (Tex. Crim.

“ie (14 Cr. L. Rep. 2479 [1974]). “See State v.

Minn. .... (1974) (14 Cr. L. Rep. 2498 [1974])

(Miller standard said to be applicable but not retroactively).

Federal cases: United States v. 12 200-Ft. Reels of Super 8

MM. Film, 413 US. 123, 130 (fm. 7) (1973). This opinion

ae Miller pad ta day se the Mier sexual conduct (

the see

fn. 4 above), and thus set the pattern for lower

tie

f

a

State obscenity statutes have been made in the face of

forceful dissents.” Other courts, fewer in number, have

declined to provide a judicial rescue for statutes which

by their terms failed to meet the Miller requirement

of specificity. The basic question here is what course

this court should now follow.

In the absence of any legislative redefinition of ob-

scenity, persons concerned about the application to

them of Massachusetts obscenity statutes have been

i eeay ig, Fae ee

L. J. . » Bp i . :

United States v. Thevis 484 F. 2d 1149, 1155 (Sth

Cir. 1973), cert. pending sub nom. Thevis v. United States, (Jan-

uary 8, 1974) 42 U. S. L. Week 3407 (a criminal prosecu-

tion).

rel. Wampler v. Bird, supra, 499 S. W. 2d 780, 784 (Mo. 1973).

People v. Heller, 33 N. Y. 2d 314, 334, 338 (1973). State v.

J-R Distribs. Inc., supra, .... Wash. 2d at _ (1973) (512 P. 2d

"Stroud v. State, ... Ind. ... (1973) (300 N. E. 2d 100

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

v. Shreveport News Agency, Inc., 287 So. 2d 464 (La.

1973). Art Theater Guild, Inc. v. State, ... Tenn. ... (1974)

(14 Cr. L. Rep. 2498 [1974]). In the Stroud case the

cert “ :

ber 18, 1973) 42 U. S. L. Week 3365; Detco, Inc. v. McCann,

1 . Wis. 1973).

~

*

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a

obliged in recent years to gauge the legality of their

intended conduct by First Amendment standards ex-

pressed by, or anticipated from, the Supreme Court of

the United States.’ During a time when First Amend-

ment rights were expanding so as to reduce the scope

of what might constitutionally be regulated as obscene,

the application of new standards was not unfair to those

bees changed,

In at least one material respect the Miller case re-

ee ee ne Se eee: ae

that existing under the Roth-Memoirs test." Under

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the Roth-Memoirs standard there had to be an affirma-

tive showing that the materials were “utterly without

redeeming social value.” See Jacobellis v. Ohio, 378

U.S. 184 (1964); “John Cleland’s Memoirs of a Wom-

an of Pleasure” v. Attorney Gen. of Mass, 383 US.

413 (1966). Under the Miller test the work must lack

“serious literary, artistic, political, or scientific value.”

Today a work not utterly without social value but of

less than serious literary, artistic, political, or scientific

value may be prohibited as obscene, whereas before it

could not.”

A review of our decisions indicates that we have not

authoritatively construed § 28A in a way which has

“specifically defined” the sexual conduct whose portray-

al is barred by statute. Certainly our decisions fall far

short of the degree of definitiveness appearing in stat-

utes in Oregon and Hawaii, whose definition of pro-

hibited conduct was at least qualifiedly endorsed in the

Miller opinion (supra, 24, fn. 6). Our decisions also

fall far short of the “plain examples” given in the Miller

lle

wealth v. Donahue, 358 Mass. 803 (1970) (“[n]one of

the pictures, however, explicitly portrayed copulation

or other sexual congress”). See also Commonwealth v.

Palladino, 358 Mass. 28, 32 (1970), and Common-

wealth v. Bitsocos, .... Mass. .... (1972),* for even more

general characterizations in the same vein.”* The opinion

in the Donahue case was not designed as an authorita-

tive construction of our statute (G.L. c. 272, § 28A) so

as to provide a definition of proscribed sexual conduct.

The Court of Appeals for the First Circuit was correct

in indicating in Literature, Inc. v. Quinn, 482 F. 2d

372, 375 (1973), that this court has not “specifically

defined” (see Miller v. California, supra, at 24) those -

activities which under § 28A may not be depicted or

described. It is therefore clear that the opportunity is

not fairly available to us, as it was in certain other

States (see fn. 5 above), to conclude that the constitu-

sinllie

traditionally reluctant to perform. It is true that, despite

traditional reluctance, this court has for many years

undertaken to protect such vestiges of our obscenity

statutes as it could from the erosion of waves of consti-

tutional onslaught. In doing so we have suggested that

our obscenity statutes apply as far as the Federal Con-

stitution may permit. That itself has been a standard

of some uncertainty, subject to abrupt change, as the

Miller case so clearly shows. It may seem strange

that we appear to have abandoned the Struggle just as

the tide may have turned. It is, however, for that very

reason that we decline further to engage in the function

of saving judicially a statute which is of great ambiguity

on its face. The abandonment of the Roth-Memoirs test

. has removed the basis upon which this court has at-

tempted to save § 28A by judicial construction.

People are entitled to know what they may or may

not do under the threat of imprisonment or fine. Our

general obscenity statute does not furnish any guidance.

As previously indicated, we decline to undertake the

task of trying to list the specific sexual conduct whose

display or description § 28A proscribes. To do so

would constitute a judicial rewriting of that statute.

Thus if there is to be regulation in the Commonwealth

in the area of the sale or showing of pornographic

works to adults, it must be achieved by expli¢it new

legislation."

“The Legislature can deal with the subject comprehensively.

Unlike this court, the Legislature is in a position to define

aa

We do not see any rational basis for treating viola-

tions allegedly committed (or a case tried) before the

Miller decision, as is the situation here, differently from

those taking place after that decision. In each instance

§ 28A is constitutionally inadequate. Thus, although

the defendants may well have had an error-free trial

under the law as it existed at the time of trial, we must

apply Federal constitutional principles as established

by the Supreme Court of the United States at the time

a case is decided by us. See Attorney Gen. v. “Tropic

of Cancer,” 345 Mass. 11, 18 (1962); Linkletter v.

Walker, 381 U.S. 618, 622, 627 (1965).

One cautionary note should be given concerning

what we have not decided. Speaking generally, G. L.

c. 272, § 28, deals with actual or intended sales, ex-

hibitions, or distributions of certain material harmful

to minors. The words “harmful to minors” have an

explicit statutory definition, expressed somewhat along

the pattern of the Roth-Memoirs test. Such an explicit

description of prohibited conduct obviously does not

suffer from the same lack of specificity found in G. L.

c. 272, § 28A, when tested by the standards of the

oe

construed as expressly or impliedly rendering unenforce-

able the statute concerned with the furnishing of ob-

scene material to minors.”®

From what we have said it is apparent that the de-

fendants are the fortuitous beneficiaries of the conse-

quencies in this Commonwealth of the decision of the

Supreme Court of the United States in the Miller case.

Exceptions sustained.

Note: Chief Justice Tauro and Justices Hennessey and

Kaplan join in the preceding majority opinion, and in

the majority opinion in the cases Commonwealth v.

Capri Enterprises, Inc. and Essex Theatre Corporation

v. Police Commissioner of Boston, decided April 23,

1974.

HENNESSEY, J. (concurring). I concur as to both

result and reasoning with the opinion of the court as

expressed by Justice Wilkins. The United States Su-

preme Court, in the Miller case, ruled that the Con-

stitution requires specificity in an obscenity statute.

More particularly, the relevant sexual conduct must be

specifically defined either in the wording of the statute

or by authoritative judicial construction of the statute.

Clearly .G. L. c. 272, § 28A, contains no such specifics

General Laws c. 272, § 28, as appearing in St. 1966, c. 418,

§ 1, defines “harmful to minors” to include, among other things,

a “quality of description or representation of nudity, sexual con-

duct or sexual excitement which . . . is utterly without redeeming

social importance for such minors.” This standard, as the Miller

case indicates, may be more generous than the Constitution re-

quires. If this court had incorporated the Miller case standards

into the State’s general obscenity statute (i.e., lacking “serious

literary, artistic, political, or scientific value”), arguably it could

have produced the anomalous result that pornographic material

having some “social importance” but not “serious” value could

<> to minors under § 28 but not to adults under

oa ee

in its wording. Nor have we authoritatively construed

the statute. The few Supreme Judicial Court cases re-

lied on in the dissent in Commonwealth v. Capri En-

terprises, Inc., post, .....° contain only cursory, and at

best ambiguous, reference to proof under the statute.

Just as important, until the Miller case established a

rule of community standards, everything that we said

about our statute had to be read in the context of na-

tional standards of First Amendment protection. These

national standards in turn have been so vaguely defined

-as to foreclose any authoritative construction of a local

obscenity statute.

Every appeal deserves our most careful considera-

tion, but there is an added and special importance in

our reaching the correct results in this decision, the

Capri case, supra, and Essex Theatre Corp. v. Police

Commr. of Boston, post, .....» For about seventeen years

confusion has reigned as to the validity and effective-

ness of obscenity statutes. Decisions of the United

States Supreme Court virtually halted prosecutions

under such statutes. Upholding the statute here through

what could only be impermissible and excessive strain-

ing on our part might add months or years of unneces-

sary uncertainty and confusion to the long hiatus that

has already occurred. Eventually and almost certainly,

in my opinion, review of these cases or other relevant

cases in the Federal courts would result in a determina-

tion of unconstitutionality of the statute. See Literature,

Inc. v. Quinn, 482 F. 2d 372 (1st Cir. 1973).

By our ruling today, the Legislature is made aware

that the statute, G. L. c. 272, § 28A, is no longer

"Mass. Adv. Sh. (1974) (decided April 23, 1974).

>Mass. Adv. Sh. (1974) decided April 23, 1974.

inti,

viable. Simultaneously, the Legislature is apprised that,

in the Miller case, for the first time since the free

speech-obscenity dialogue began in earnest, guidelines

for a constitutionally acceptable objective standard for

obscenity statutes have been established by the United

States Supreme Court. Moreover, such statutes may now

be construed by community, rather than national, stand-

ards.

Thus the Legislature may now at its option, without

further delay or confusion, determine whether the Com-

monwealth should or should not have a new obscenity

statute or statutes. If it decides that question affirma-

tively, it alone has the privilege of defining, within con-

stitutional limits, the conduct which shall be proscribed.

It is not for this court to make those decisions.

Nevertheless, if the reasoning of the three dissenting

Justices of this court in the Capri Case, supra, were to

prevail, it would in effect require that we should make

those legislative determinations. I respectfully suggest

that these Justices are applying the same type of sub-

jective individual judgments that some or all of the Jus-

tices of the United States Supreme Court have applied

in the last two decades of judicial confusion in this

area of the law. Bickel, The Supreme Court and the

Idea of Progress, 50-58 (1970). The fact that an “ex-

hibitor” or “any competent adult,” as referred to in the

dissenting opinion in the Capri case may conclude that

the subject matter is obscene, in the sense that it is

tasteless or degrading, does not necessarily support a

conclusion that those persons are or should be aware

that the same matter is legally obscene within the mean-

ing of any statute. The legal concept has been compli-

cated by a series of United States Supreme Court deci-

sions. These: raised a mythical and mystifying national

—_] 4.

standard of First Amendment protection. They also pro-

vided First Amendment protection on the basis of social

worth that was all but imperceptible in some cases. For

example, in “John Cleland’s Memoirs of a Woman of

Pleasure” v. Attorney Gen. of Mass. 383 US. 413

(1966), the court held that “Memoirs” was protected

by the First Amendment, although Mr. Justice Clark

summarized its total vulgarity (383 U.S. at 445-446) in

a list that, for length and strength, is at least a match

for the similar synopsis on which the dissent relies in

the Capri case, supra.

In a long series of cases the Supreme Court has

invariably, with two inexplicable exceptions,’ reversed

all judgments based on findings of obscenity in cases

which apparently involved all types of alleged pornog-

raphy.” The phrase “hard-core pornography,” upon

‘which the dissenters apparently rely in their reasoning,

is little more than a cliché which has not been defined

in any case, nor has it apparently been a premise for

the affirmation of even one judgment of guilt. Even

the three decisions of the Supreme Judicial Court which

are relied on in the dissent in the Capri case, supra,

1Ginzburg v. United States, 383 U.S. 463 (1966). Mishkin v.

New York, .383 U.S. 502 (1966).

2Times Film Corp. v. Chicago, 355 U.S. 35 (1957). Mounce

v. United States, 355 U.S. 180 (1957). One, Inc. v. Olesen,

355 U.S. 371 (1958). Sunshine Book Co. v. Summerfield, 355

US. 372 (1958). Kingsley Inti. Pictures Corp. v. Regents of the

Univ. of the State of N.Y., 360 U.S. 684 (1959). Smith v.

California, 361 U.S. 147 (1959). Marcus v. Search Warrant of

at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717

(1961). Manual Enterprises, Inc. v. Day, 370 US. 478 (1962).

Jacobellis v. Ohio, 378 U.S. 184 (1964). A Quantity of Copies

of Books v. Kansas, 378 U.S. 205 (1964). Tralins v. Gerstein,

378 U.S. 576 ( 1964). Grove Press, Inc. v. Gerstein, 378 US.

577 (1964). Trans-Lux Distrib. Corp. v. Board of Regents of

the Univ. of N.Y., 380 U.S. 259 (1965). Redrup v. New York,

386 U.S. 767 (1967). Kois v. Wisconsin, 408 U.S. 229 (1972).

pe

as authoritative constructions of the statute, were all

reversals of convictions. Commonwealth v. Palladino,

358 Mass. 28 (1970). Commonwealth v. Donahue,

358 Mass. 803 (1970). Commonwealth vy. Bitsocos,

.... Mass. .... (1972).°

We should take notice of abundant empirical evi-

dence that the community has tolerated increasingly

permissive displays of pornographic literature and X-

rated movies. Ultimate sexual acts have been depicted

in scores of moving pictures and regularly shown in

theatres in all of the urban communities, and many of

the suburbs and rural areas, in the Commonwealth.

From one such motion picture the male star received

an Academy Award nomination for a performance

which included repeated and explicit scenes of coitus

with the female costar. Photographs of these actors,

in sexual congress, also appeared in our national news

magazines of widest distribution. It is not surprising if,

in all these circumstances, some police and prosecutors,

or the defendants in these cases before us, concluded

that the national standard superimposed on our local

law had reached a state of almost unlimited permissive-

ness. These developments of the most recent several

years have not been refuted by any firm language of this

court or the United States Supreme Court. Thus I cannot

conclude that we have authoritatively construed our

Statute in the manner demanded by the Miller case.

Finally, I offer one collateral thought. Justice Kap-

lan’s concurring opinion expresses the idea that the

holdings of the Miller case and related recent cases

are “probably transient.” I share his suspicion. In a

very few years the Supreme Court has gone from

“Mass. Adv. Sh. (1972) 641.

ves” Be

the Roth-Memoirs standard all the way to the Miller

standard. In between there was a temporary reversal

of direction in the Ginzburg and Mishkin cases, supra.

Similarly, certain crucial rules relating to the right to

counsel as established in United States v. Wade, 388

U.S. 218 (1967), and Gilbert v. California, 388 U.S.

263 (1967), were all but vacated by the severe limita-

tions of Kirby v. Illinois, 406 U.S. 682 (1972), just

five years later.* Likewise, the relative certainty concern-

ing search and seizures related to automobiles, as estab-

lished by Chambers v. Maroney, 399 U.S. 42 (1970),

was cast into confusion by Coolidge v. New Hampshire,

403 U.S. 443 (1971), the very next year. See Common-

wealth v. Haefeli, .... Mass. .... (1972). Certainly con-

stitutional interpretation must respond to social change,

but this duty does not explain speedy overruling of new

doctrines. These turn-arounds are followed by serious

consequences to many people in every community. Es-

pecially in the area of constitutional-criminal law all con-

cerned are entitled to a substantial measure of stability

and predictability.

KAPLAN, J. (concurring). The latest, but probably

transient, view of a majority of the Supreme Court of

the United States seems to demand of a State statute on

criminal “obscenity” that it should comprise specifics,

thus reverting to the style of the motion picture produc-

tion code sponsored by the late Will H. Hays.’ I agree

ad | ize that the plurality in the Kirby case implied that it

clarifying what had always been the law. Nevertheless,

I that most trial j after the Wade case and prior

‘Mass, Adv. Sh. (1972) 423.

1See Inglis, Freedom of the Movies, 205-219 (1947).

poe ee

that the tired words of our statute do not have the magi-

cal property of instantly conforming their meaning to the

hypothesized statute, and therefore I join in the court’s

opinion.

Persons with a reflective or experimental turn of mind

might welcome an opportunity to observe how New Eng-

land communities would carry on over a period of time

without the assistance of suppressive law. The prospect

is remote. The court’s opinion is likely to be under-

stood as an urgent invitation to our legislators to draft

and pass the indicated statute. Therefore I think I should

say that such an enactment would present for independ-

ent consideration a question of constitutionality. For

the time being the doubt would not arise from the Con-

stitution of the United States, for in that respect al]

are bound by the latest decisions of the Supreme Court;

rather it would arise from the Massachusetts Declara-

tion of Rights. In applying that fundamental docu-

ment, one would have to consider whether to align one-

self with the four dissenting Justices of the Supreme

Court who believe a State is without power to intrude

on the choice of an adult who knowingly and willing-

ly seeks out a pornographic work. According to their

conception, a pornographic communication is still a

communication which the free press guaranty protects

at least to the extent mentioned; in that regard it does

not differ from other messages that many would con-

sider profoundly anti-social, for example, the writings

of Henry George on the single tax.

If this view should prevail, our courts would be re-

lieved of the anomalous duty of serving as literary and

artistic constables, and the Commonwealth would be

spared the phenomenon of judges (very few of them

witness

women) trying as official censors to assess the incitive

or emetic qualities of movies or books that a consider-

able fraction of the population, pursuing their own tastes,

desire to see or read. The reallocation of judicial re-

sources to tasks that judges are better schooled to handle

might be thought to be in itself a distinct gain.

BRAUCHER, J. (dissenting, with whom Reardon and

Quirico, JJ., joim). For the reasons stated in our dissent-

ing opinion in Commonwealth v. Capri Enterprises, Inc.,

post,” we do not agree that G. L. c. 272, § 28A, is

unconstitutionally vague under the standard of Miller

v. California, 413 U.S. 15 (1973). We should proceed

to decide these cases, applying the Miller standard.

Since the court does not consider any issues relating

to the application of the Miller standard to the facts

of these cases, we forbear further discussion.

“Mass. Adv. Sh. (1974) decided April 23, 1974.