J-R Distributors, Inc. v. Eikenberry

Related Cases

WALLACE, Circuit Judge,

dissenting:

Rejecting prudential approaches that would allow us to await application of this statute to a concrete factual situation, the majority finds House Bill 626 unconstitutionally overbroad on its face because its drafters, following the Supreme Court’s language in Roth v. United States, 354 U.S. 476, 486, 487 n. 20, 77 S.Ct. 1304, 1310 n. 20, 1 L.Ed.2d 1498 (1957) (Roth), used the word “lust” to help define prurient interest.. The majority concludes that “[t]he application of both civil and criminal penalties under House Bill 626 depends on a determination that the materials involved are legally obscene. Consequently, an unconstitutionally overbroad definition of obscenity renders House Bill 626 null and void.” Despite having done all it may do as a court, however, the majority goes on to assert that “because the legislature will undoubtedly try again, we believe it advisable to discuss ... the statute’s civil fine provision .... because it contains an obviously unconstitutional feature.”

What follows that statement is merely advisory. Were it a holding, I would concur: the civil fine provision is overbroad and incapable of a saving construction. Even the majority’s prior restraint argument would have force on this issue. See, e.g., Jeffries, Rethinking Prior Restraint, 92 Yale L.J. 409, 412 (1983); see generally Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). But neither this advice to the state legislature, nor the discussion of it, amounts to an alternative holding. The actual holding of the majority strikes down the whole House Bill 626. The majority’s dicta would not reach a similar conclusion; instead, it would strike down only a portion of the statutory scheme, leaving the rest intact. In that sense it is not an alternative way of reaching a result, but an answer to a different, and lesser, question. An outcome-determinative test shows the majority’s conclusion about the unconstitutionality of the civil fines cannot be a true alternative holding. Had the majority correctly decided that the mere use of “lust” is not facially overbroad, the remaining “alternative holding” would not allow the appeal to come out the same way on the validity of the statute as a whole. See Lucas, The Direct and Collateral Estoppel Effects of Alternative Holdings, 50 U.Chi.L.Rev. 701, 703 (1983). Because the civil fine discussion is dictum, I do not vote upon it. I do dissent, however, from the part of the majority opinion that is a holding.

The current limits on obscenity legislation, state or federal, appear generally in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (Miller). That case did not reject all that had gone before, or limit scripturally all that would come after. See, e.g., id. at 24 n. 6, 93 S.Ct. at 2615 n. 6. In explaining the term “obscene material,” Miller affirmed that the words “have a specific judicial meaning which derives from the Roth case, i.e., obscene material ‘which deals with sex.’ Roth, supra, [354 U.S.] at 487 [77 S.Ct. at 1310]. See also ALI Model Penal Code § 251.4(1) ‘Obscene Defined.’ (Official Draft 1962).” Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2. The Court’s opinion, id. at 24, 93 S.Ct. at 2614, also looked back to Roth for help in defining the permissible scope for state regulation of obscene material: “whether ‘the average person, applying contemporary community standards,’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra [408 U.S. 229], at 230 [92 S.Ct. 2245, at 2246, 33 L.Ed.2d 312], quoting Roth v. United States, supra, [354 U.S.], at 489 [77 S.Ct. at 1311].”

In reaffirming that the first amendment does not protect obscene material, Miller clearly indicates that Roth provides the chief source for understanding “prurient interest.” Only in Roth, and in no other opinion, did the Court explain the term:

Obscene material is material which deals with sex in a manner appealing to prurient interest.20

*499354 U.S. at 487 & n. 20, 77 S.Ct. at 1310 & n. 20 (emphasis added).

It is thus clear in Roth, unchanged by Miller, that “lustful thoughts” can be a part of the “prurient interest” definition. The majority would eliminate that part of Roth in order to arrive at its conclusion that the State of Washington may not constitutionally include “lust” as even a part of its definition.

First, the majority argues that the direct citation to “lustful thoughts” means nothing because the Roth footnote ends by citing the Model Penal Code. But why? Would not the reverse of this argument make as much sense: because the Court begins by citing “lustful thoughts,” the rest of the footnote means nothing?

The better interpretation is to read the footnote as a whole. Indeed, as the Court’s reference in the footnote to “no significant difference in meaning” hints, the footnote catalogues different ways to describe the same concept. The reference to lust describes prurient interest as much as does the reference to the Model Penal Code. See, e.g., Feinberg, Pornography and the Criminal Law, 40 U.Pitt.L.Rev. 567, 585 (1979) (interpreting obscenity in Roth with reference to the “appeal to prurient interest” clause: obscenity means “whatever is produced for the sole purpose of arousing lustful thoughts .... ”).

No doubt the Supreme Court has often addressed the Model Penal Code’s definition of prurient interest because states have often enacted it. See, e.g, Ward v. Illinois, 431 U.S. 767, 771, 97 S.Ct. 2085, 2088, 52 L.Ed.2d 738 (1977) (Ill.Rev.Stat. c. 38, § 11-20(b)); S.S. & W., Inc. v. Kansas City, 421 U.S. 925, 925, 95 S.Ct. 1650, 1650, 44 L.Ed.2d 83 (1975) (Kansas City Ord. § 26.-141) (Brennan, J., dissenting from dismissal of the appeal for want of a substantial federal question); Jenkins v. Georgia, 418 U.S. 153, 154-55, 94 S.Ct. 2750, 2752, 41 L.Ed.2d 642 (1974) (Ga.Code Ann. § 26-2101); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 51 n. 1, 93 S.Ct. 2628, 2632 n. 1, 37 L.Ed.2d 446 (1973) (Ga.Code Ann. § 26-2101); Miller, 413 U.S. at 16 n. 1, 93 S.Ct. at 2611 n. 1 (Cal.Penal Code § 311.2(a)). That does not mean the Court has abandoned Milleds adoption of the Roth definition. The Supreme Court has never held that the Model Penal Code provides the only acceptable definition. States may choose other ways to define appeals to the prurient interest. Cf. Smith v. United States, 431 U.S. 291, 310, 97 S.Ct. 1756, 1769, 52 L.Ed.2d 324 (1977) (Powell, J., concurring) (states have power to design their obscenity statutes as they see fit; “Within the boundaries staked out by Miller, the states retain broad latitude .... ”). Indeed, that is what has occurred.

In accepting this latitude to define, some states have not followed the Model Penal Code but have, as identified in Miller itself, 413 U.S. at 24 & n. 6, 93 S.Ct. at 2615 & n. 6, listed particular depictions of physical conduct. See, e.g, id. (1971 Ore.Laws, c. 743, art. 29, §§ 255-262; 1972 Hawaii Sess. Laws, Act 9, c. 12, pt. II, at 126-29); see also Young v. American Mini Theatres, 427 U.S. 50, 53 & n. 4, 96 S.Ct. 2440, 2444 & n. 4, 49 L.Ed.2d 310 (1976) (Detroit zoning ordinance). Other states have chosen, by using *500language like that in the Roth footnote, a third way to define appeal to the prurient interest. The Ohio legislature devised the following alternative definitions:

“(A) Any material or performance is ‘obscene’ if, when considered as a whole and judged with reference to ordinary adults, any of the following apply:
“(1) Its dominant appeal is to prurient interest;
“(2) Its dominant tendency is to arouse lust by displaying or depicting nudity, sexual excitement, or sexual conduct in a way which tends to represent human beings as mere objects of sexual appetite;
“(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
“(4) It contains a series of displays or descriptions of nudity, sexual excitement, sexual conduct, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than for a genuine scientific, educational, sociological, moral, or artistic purpose.” Ohio Rev. Code Ann. § 2905.34 (Supp.1972), now Ohio Rev.Code Ann. § 2907.01 (1975).

See Art Theatre Guild, Inc. v. Ewing, 421 U.S. 923, 923-24, 95 S.Ct. 1649, 1649, 44 L.Ed.2d 82 (1975) (Brennan, J., dissenting from dismissal for want of a substantial federal question) (emphasis added). The state courts enjoined the showing of a film under this statute. The Supreme Court dismissed an appeal from the injunction. Id. at 923, 95 S.Ct. at 1649. Although the Court clearly had the “ultimate power .. . to conduct an independent review of [any] constitutional claims,” Miller, 413 U.S. at 25, 93 S.Ct. at 2615, it saw no substantial federal question raised despite the use of the word “lust.” See also State ex rel. Keating v. “Vixen”, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973) (without construing the Ohio statutes in any way, holding they comport with Miller).

Nebraska’s definition of obscenity, Neb. Rev.Stat. § 28-926.07 (1964), incorporates language from Roth and the Model Penal Code as alternatives. The statute asks whether the dominant theme of material “appeals to the prurient interest, which is to excite lustful thoughts, or a shameful or morbid interest in nudity, sex, or excretion which goes substantially beyond the customary limits of candor.” Id. (emphasis added). Ordered to reconsider a conviction under section 28-926.07 in light of Miller, the Nebraska Supreme Court found “the Nebraska statutes fully comply with the requirements of Miller v. California .... We have not given them a new or different construction [to reach that conclusion] . . .. ” State v. Little Art Corp., 191 Neb. 448, 215 N.W.2d 853, 856, on remand from 414 U.S. 1151, 94 S.Ct. 907, 39 L.Ed.2d 105 (1974). See Note, Community Standards, Class Actions, and Obscenity Under Miller v. California, 88 Harv.L.Rev. 1838, 1847 n. 51 (1975). Notably, the court considered “lust” and “lasciviousness” equivalent: “The word prurient in its application to obscenity means ‘tending to excite lasciviousness’ and lasciviousness means the presence or arousal of sexual desire. Similarly applied to obscenity the word lustful refers to sexual desire.” Id.

In Georgia, although the statute tracks the Model Penal Code definition of obscenity, the courts have recently defined material appealing to the prurient interest as “material which has a tendency to excite lustful thoughts.” Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2, 5 (Ga.App.1980) (emphasis added). A jury instruction along those lines “simply gave the jury a better understanding of the meaning of prurient appeal. See Roth v. United States, 354 U.S. 476, 477(4), 487 [77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498] .. .. ” Spry v. State, 274 S.E.2d at 5.

It would appear, therefore, that neither the Supreme Court nor state courts have abandoned the use of the term “lust” in proscribing obscenity under the first *501amendment. The Model Penal Code definition, although helpful, has not been decreed the only acceptable method of defining prurient interest.

The majority’s other argument is that the meanings of words change, and “lust” no longer aids anyone in defining prurient interest. The scope of obscenity may indeed differ from place to place, time to time, and culture to culture. See, e.g., Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 128 U.Pa.L.Rev. 45, 53 & n. 52 (1974), citing G. Gorer, The Danger of Equality 218 (1966), and La Barre, Obscenity, An Anthropological Appraisal, 20 Law and Contemp.Prob. 533, 541-42 (1955), (certain southsea island cultures find eating in public obscene). In our obscenity jurisprudence, this concern for changing definitions is met head-on by the criterion of “contemporary community standards,” Miller, 413 U.S. at 24, 93 S.Ct. at 2615; Roth, 354 U.S. at 489-90, 77 S.Ct. at 1311-12. See McKinney v. Alabama, 424 U.S. 669, 689-90, 96 S.Ct. 1189, 1200, 47 L.Ed.2d 1189 (1976) (Brennan, J., concurring in the result) (“community standards are inherently in a state of flux .... ”). Cf. Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973) (“Words inevitably contain germs of uncertainty .... ”). The majority, however, finds the Supreme Court’s explicit provision for ascertaining change inadequate. Discarding the term “lust” on purely “legal” grounds of changed societal definition usurps the purpose of the “contemporary community standards” test.

The majority also forgets that any purely legal definitions in this area are less dependent on particular editions of dictionaries, or on an interview in Playboy magazine,1 than on the Supreme Court. See, e.g., Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2 (words “obscene material” have a specific judicial meaning derived from Roth). The Supreme Court has not adopted the definitional change as embraced by the majority. The Court has used “lust” to help define “prurient interest.” Roth, 354 U.S. at 487 n. 20, 77 S.Ct. at 1310 n. 20. The Court has reconfirmed the vitality of this use by citation to Roth. See Miller, 413 U.S. at 18 n. 2, 93 S.Ct. at 2612 n. 2. Cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n. 10, 95 S.Ct. 2268, 2275 n. 10, 45 L.Ed.2d 125 (1975) (“[T]o be obscene, ‘such expression must be, in some significant way, erotic.’ ”), citing Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971), which, in turn, cites solely Roth. The Supreme Court has not subsequently forbidden the use of “lust” to help define “prurient interest.” See Art Theatre Guild, Inc. v. Ewing, 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82. State courts have upheld the use of “lust” since Miller to help define prurient interest. E.g., State v. Little Art Corp., 191 Neb. 448, 215 N.W.2d 853. Therefore, I conclude that the majority is wrong in holding as a matter of law that alleged, but unproven, changes in society’s definition of “lust” authorize this court to erase the word from a constitutionally permissible definition. If there has been a change in the community view, it will be expressed in the first prong of the Miller test in assessing contemporary community standards.

Dealing with an obscenity definition is not easy work. Often reasonable minds will differ. Indeed, had I been the drafter of the Washington statute, I would have used a different definition. But the question before us is whether, as a matter of law, use of the word “lust” as part of the definition of prurient interest violates the *502first amendment. I conclude that the majority was wrong in reading “lust” out of the Roth definition as affirmed by Miller and that the majority was wrong in holding, as a matter of law, that the meaning of “lust” has changed so that it may not be a part of the Roth-Miller definition of prurient interest.

At worst, Washington’s use of “lust” taken from Roth stands subject to construction in light of Miller, which cited that part of Roth sixteen years later. A “limiting” construction is so obvious that, for prudential reasons, we should at least refuse to decide the plaintiffs’ constitutional challenges on the basis of Washington’s mere use of the word “lust” until a case arises applying the statute. See, e.g., Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916; see also Monaghan, Overbreadth, 1981 S.Ct.Rev. 1, 35 (in a declaratory judgment action, the litigant in substance asks “whether the courts will, as a matter of statutory construction, refuse to narrow the statute to constitutional boundaries .... ”). Cf. Dombrowski v. Pfister, 380 U.S. 479, 491-92, 85 S.Ct. 1116, 1123-24, 14 L.Ed.2d 22 (1965) (no readily apparent construction could repair the vagueness of the state law in question, so, in the face of threatened prosecutions, plaintiffs received “appropriate equitable relief without awaiting declaratory judgments in the state courts”).

As another court recently observed, “[w]e must not make it impossible to draft legislation by finding facial overbreadth and ambiguity in all words.” Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1034 (5th Cir.1981), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982). The majority, by finding facial overbreadth in the word “lust,” forbids Washington to draft legislation based on Supreme Court precedent. The majority, I conclude, is wrong.

i.e., material having a tendency to excite lustful thoughts. Webster’s New International

*499Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows:

“... Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd....”

Pruriency is defined, in pertinent part, as follows:

“... Quality of being prurient; lascivious desire or thought....” See also Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230, 242, 35 S.Ct. 387, 390, 59 L.Ed. 552, where this Court said as to motion pictures: “... They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to.... ” (Emphasis added.)

We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz.:

“... A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. ...” See Comment, id., at 10, and the discussion at page 29 et seq.

. It seems strange that the majority’s argument for a different sociological view of lust depends so heavily on President Carter’s personal views. Furthermore, the majority has misinterpreted those views. President Carter characterized lust as a sin requiring divine forgiveness, not as something “acceptable” in our community. See Playboy Interview: Jimmy Carter, Playboy, Nov. 1976 at 86:

“I try not to commit a deliberate sin. I recognize that I’m going to do it anyhow, because I’m human and I’m tempted..... I’ve looked on a lot of women with lust. I’ve committed adultery in my heart many times. This is something that God recognizes I will do — and I have done it — and God forgives me for it.”