# Reply Brief of Petitioner — Thevis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1846%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief of Petitioner - **Published:** January 1, 1974 - **Citation:** 418 U.S. 932 ## Text 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). ~ * 3 oo -~ m 0 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 hf aie Half aaa 1 F a5 923) : rail ltl iy Na = siz i 5 i if Ss 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1846%3A5. Public record. Not legal advice.