dissenting:
The majority opinion on remand sets forth the progress of this litigation from the circuit courts of Rock Island and Winnebago Counties, Illinois, to the United States Supreme Court. It holds that section 11 — 20 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20) and section 2 of the Moline obscenity ordinance are constitutional as therein construed; that they incorporate parts (a) and (b) of the. Miller standards; and further holds that the changes in the standards from Memoirs to Miller afford no impediment to the retroactive application of the statute and ordinance, as construed. I disagree with the majority view and conclusions.
I would reverse the judgments and hold the enactments in question to be unconstitutional in the light of the pronouncements of Miller v. California for the reasons hereinafter stated.
After conviction in the trial court, the Ridens, Keckler and Walker cases were consolidated on appeal in this court, for argument and opinion; the constitutionality of the obscenity enactments was upheld, and the judgments of
conviction were affirmed. (People v. Ridens (1972), 51 Ill.2d 410.) However, the United States Supreme Court vacated our judgments, and the cases were remanded to this court for further consideration in the light of Miller v. California.
Miller v. California (1973), 413 U.S. 15, 24-25, 37 L. Ed. 2d 419, 430-431, 93 S. Ct. 2607, 2614-2615, established the following principles for use in determining whether a work may be considered obscene:
“As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. [Emphasis mine.]
The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229, at 230, 33 L. Ed. 2d 312, at 315, 92 S. Ct. 2245, at 2246 (1972)], quoting Roth v. United States, [354 U.S. 476, at 489, 1 L. Ed. 2d 1498, at 1509, 77 S. Ct. 1304, at 1311 (1957)]; (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. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, [383 U.S. 413, at 419, 16 L. Ed. 2d 1, at 6, 86 S. Ct. 975, at 977 (1966)] ; that concept has never commanded the adherence of more than three Justices at one time.” See 413 U.S. at 21, 37 L. Ed. 2d at 429, 93 S. Ct. at 2613.
In Hamling v. United States (1974), 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887, the United States Supreme Court held that obscenity defendants whose convictions were on appeal at the time Miller was decided must receive the benefits of any constitutional ruling announced therein.
Both the Illinois obscenity statute and Moline ordinance incorporate the Roth-Memoirs test, i.e., that the material must be “utterly without redeeming social importance.” The Miller test seems to reduce the first-amendment protection from that under the RothMemoirs test, and thereby expand the scope of works or materials which are not subject to regulation, by substituting for it the requirement that the material alleged to be obscene, taken as a whole, lacks “serious literary, artistic, political, or scientific value.”
The defendants herein were tried under the Roth-Memoirs standards. (Roth v. United States (1957), 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304; Memoirs v. Massachusetts (1966), 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975.) These standards included as part of the tripartite guideline the requirement that the material in question be “utterly without redeeming social importance.” Thus, to sustain a determination as to obscenity under Memoirs, this criteria would be met only if the matter in question is “utterly without redeeming social importance.” Under Miller, if there is some social importance, be it artistic, literary, political or scientific, no matter how slight, the material should not be condemned as obscene. See Notes and Comments, Miller v. California: A Cold Shower for the First Amendment, 48 St. John’s L. Rev. 568 (1974).
Thus, the enactments as drafted and as heretofore construed by this court are more restrictive than the new basic standards or guidelines laid down by the United States Supreme Court in Miller, so as to expand the scope of work and materials that are not subject to the first-amendment regulation. Commonwealth v. Horton (1974), ----Mass. ---, 310 N.E.2d 316.
Our decisions herein cited' have not construed the enactments in question so as to meet the lesser constitutional requirements of Miller.
In considering the subject of obscenity, it is well to note that neither the enactments under consideration, the decisions of this court, nor of the United States Supreme Court, condemn sex or nudity as such, but only works or materials pertaining thereto which appeal to the prurient interest and which are patently offensive.
The question of whether obscenity is within the protection of the first amendment to the United States Constitution, or whether it should not be so protected, is not at issue. The Supreme Court and this court have regularly and consistently held that traffic in obscene materials lies beyond the limits of first-amendment coverage. See Miller v. California (1973), 413 U.S. 15, 21, 23, 37 L. Ed. 2d 419, 428, 430, 93 S. Ct. 2607, 2613, 2614; Kois v. Wisconsin (1972), 408 U.S. 229, 230, 33 L. Ed. 2d 312, 314-315, 92 S. Ct. 2245; United States v. Reidel (1971), 402 U.S. 351, 353, 28 L. Ed. 2d 813, 816, 91 S. Ct. 1410; City of Chicago v. Kimmel (1964), 31 Ill.2d 202, 204; People of Blue Island v. DeVilbiss (1968), 41 Ill.2d 135, 142; People v. Sikora (1965), 32 Ill.2d 260, 264.
The focus of the defendants’ argument was not directed at part (a) of the Miller test, but rather at part (b). Simply put, defendants argue that neither obscenity enactment before us sets forth, in a descriptive manner, those forms of sexual conduct that may be deemed patently offensive. The defendants further argue that this court has never construed the Illinois obscenity statute or any related ordinances in a definitive manner so as to meet the requirements of part (b) of Miller. Accordingly, defendants conclude that both enactments are void for vagueness and overbreadth. For these and other reasons herein stated, I agree.
Under Miller, as I understand it, State statutes and municipal ordinances designed to regulate the depiction or description of sexual conduct are confined to works which depict or describe such conduct, and that conduct must be specifically defined in such enactments, as written or authoritatively construed. The offense must be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have serious literary, artistic, political or scientific value.
An examination of the enactments in question, which are set forth in the majority opinion, will reveal that they do not meet this requirement of Miller. Additionally, this court had never, until in the majority opinion herein, construed these enactments in a definitive manner so as to meet the Miller requirements. Under the Miller holding, no one should be subject to prosecution for sale or exposure of obscene materials unless these materials depict or describe patently offensive hardcore sexual conduct.
In Miller, the Supreme Court attempted to formulate concrete guidelines to isolate hardcore pornography from expressions protected by the first amendment. The Miller guidelines require that the materials and the types of descriptions and representations of sexual conduct to be proscribed be specifically delineated. The required specificity may be accomplished by the language of the legislative enactment itself, or by judicial construction.
A survey of State statutes reveals great variance in their scope. A small number are detailed in the descriptions of proscribed sexual conduct, and more are quite general in their language, but most statutes adopt a middle course which embodies either the Roth standard or the Roth-Memoirs test. The validity of a broad, general enactment, such as the Illinois obscenity statute or the Moline obscenity ordinance, presents the court with a difficult determination. This type enactment usually provides no definition of obscenity other than the word obscene itself, or the use of synonyms, such as “prurient interest,” “patently offensive,” “morbid,” “lewd,” “indecent,” or “lascivious.” For an enactment to be sustained, the Constitution mandates that it provide adequate notice to persons engaged in the type of conduct that the enactment seeks to proscribe. Failure to give adequate notice is especially distasteful in the area of free speech. Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 86-87, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (Brennan, J., dissenting).
When at the time of the Miller decision, the court remanded more than 60 cases which had jammed its docket, a serious problem of retroactivity arose. Understandably, the due process requirement of fair notice could not be met, since the notice did not exist prior to the commission of the alleged offense. (Watkins v. United States (1957), 354 U.S. 178, 208, 1 L. Ed. 2d 1273, 77 S. Ct. 1173.) It appears that in rejecting the Roth-Memoirs standards and in establishing the Miller guidelines, the court intended that the newly created judicial test would have prospective application only.
The defendants contend that were this court to now construe the obscenity enactments in question in such way as to bring it within the meaning of Miller, such construction could not be applied retroactively to them; and that such application of the new Miller standards would be comparable to ex post facto legislation and would be contrary to due process. I agree. Such retroactive judicial construction has been specifically condemned. In Bouie v. Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697, two Negroes refused to leave a booth in the restaurant department of a drugstore, although requested to do so by the store manager. They were convicted of having violated a statute making it a misdemeanor to enter another’s land after notice from owner prohibiting such entry. The State court construed the act to cover the conduct of remaining on the premises after being requested to leave. At pages 354 and 355, the court stated: “When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law ‘in its primary sense of an opportunity to be heard and to defend [his] substantive right.’ Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 678, [74 L. Ed. 1107, 1112, 50 S. Ct. 451]. When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court’s statement in Brinkerhoff-Faris, supra, that ‘if the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious,’ and ‘The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid *** state statute.’ Id, at 679-680, [74 L. Ed. at 1112, 1113].”
In Rabe v. Washington (1972), 405 U.S. 313, 31 L. Ed. 2d 258, 92 S. Ct. 993, a drive-in theater manager was convicted of exhibiting an obscene picture with knowledge of its contents. The Supreme Court of Washington affirmed on the ground that while the film was probably not obscene if viewed only by consenting adults, it was obscene in the context of its exhibition because 12 to 15 private residences and a major thoroughfare were within viewing range of the theater’s screen. On certiorari, the United States Supreme Court reversed, and at page 316 stated:
“We hold simply that a State may not criminally punish the exhibition at a drive-in theater of a motion picture where the statute, used to support the conviction, has not given fair notice that the location of the exhibition was a vital element of the offense.”
When Ridens, Keckler and Walker sold the paperback books under consideration, neither they, nor their respective prosecutors, could have anticipated with any degree of certainty that the books would be found obscene under a yet unarticulated set of standards. Their respective convictions now stand affirmed under standards set forth in Miller, which were announced subsequent to their respective alleged criminal acts. A conviction under such circumstance violates their right to due process of law, because they were not given fair notice that criminal liability was dependent upon the subsequently announced standards. A criminal statute must give fair warning of the conduct that it makes a crime. United States v. Harriss (1954), 347 U.S. 612, 617, 98 L. Ed. 989, 996, 74 S. Ct. 808, 812.
Section 11 — 20(a) of the Illinois obscenity statute lists the elements of the offense of obscenity. It provides that a person commits the offense of obscenity, when with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof, he:
“(1) sells, delivers or provides, or offers or agrees to sell deliver or provide any obscene material or other representation or embodiment of the obscene; or
(2) Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
(3) Publishes, exhibits or otherwise makes available anything obscene; or
(4) Performs an obscene act or otherwise presents an obscene exhibition of his body for gain; or
(5) Creates, buys, procures or possesses obscene matter or material with intent to disseminate it in violation of this section, or of the penal laws or regulations of any other jurisdiction; or
(6) Advertises or otherwise promotes the sale of materials represented or held out by him to be obscene, whether or not it is obscene. ” (Emphasis mine.)
This part of the statute in general provides that the elements of the offense of obscenity are knowingly dealing in any manner with obscene materials or conduct.
It seems crystal clear that obscenity should not, and cannot meaningfully, be described in terms of itself, “obscene.” Such enactment certainly does not specifically depict or describe the sexual conduct or obscene materials which could constitutionally be proscribed under Miller. The types of descriptions and representations of sexual conduct to be proscribed must, under Miller, be specifically delineated. Miller confines the permissible scope of such regulations to works which depict or describe patently offensive hardcore sexual conduct or obscene materials which must be defined by such enactments as written or construed.
While section 11 — 20(b) defines obscenity as set forth in the majority opinion, in general it states that a thing is obscene if, considered as a whole, its predominant appeal is to the “prurient interest,” that is, a “shameful or morbid interest in nudity, sex or excretion,” and it goes beyond customary limits of candor in description or representation of such matters. Thus, section 11 — 20(b) likewise describes obscenity in terms of itself “obscene” or in terms of other adjectives or adjective clauses, such as “prurient interest,” “morbid,” or “shameful interest” which are in reality synonyms for obscene. However, neither of the obscenity enactments in question define nudity, obscene, or other adjectives or adjective clauses used therein. In the light of the Miller standards, I find the Illinois obscenity statute too general, and that it fails to set out, with specificity, the sexual conduct and materials which would be deemed patently offensive. Thus, in my judgment, the Illinois obscenity statute fails to meet the Miller guidelines.
The Moline obscenity ordinance, which is likewise included in the majority opinion, reveals the same type of approach in its attempt to depict or describe sexual conduct or materials which it seeks to proscribe. It recites that a thing is obscene “when to the average person, *** the dominant theme of the material taken as a whole appeals to ‘prurient interest’ ” and prurient interest in sex. It, too, defines obscenity in terms of itself by the use of synonymous adjectives or adjective clauses.
Such general enactments do not inform persons as to what the State commands or forbids. The ancient doctrine of nulla poena sine lege, which provides that there can be no punishment without a specific law defining the conduct to be avoided, finds support in Miller v. California. People are entitled to know what they may or may not do under threat of fine or imprisonment. The proscribed conduct should be specifically defined for this reason. The enactments in question furnish but meager guidance in this respect.
The majority opinion upholds the constitutionality of the obscenity enactments under consideration by means of judicial construction.
In Miller, the court considered the permissible scope of State regulation of works which depict or describe sexual conduct, and made the following statement: “That conduct must be specifically defined by the applicable state law, as written or authoritatively construed” (413 U.S. at 24, 37 L. Ed. 2d at 430, 93 S. Ct. at 2615), and made the following additional remarks in footnote 6: “See, e.g., Oregon Laws 1971, c. 743, Art. 29, secs. 255-262, and Hawaii Penal Code, Tit. 37, secs. 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.”
For the purpose of showing the type of specificity which Miller approved in a State statute, pertinent portions of the Oregon Revised Statutes are 'set forth as follows:
“OBSCENITY AND RELATED OFFENSES
167.060 Definitions for ORS 167.060 to 167.095. As used in ORS 167.060 to 167.095, unless the context requires otherwise:
(1) ‘Advertising purposes’ means purposes of propagandizing in connection with the commercial sale of a product or type of product, the commercial offering of a service, or the commercial exhibition of an entertainment.
(2) ‘Displays publicly’ means the exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.
(3) ‘Furnishes’ means to sell, give, rent, loan or otherwise provide.
(4) ‘Minor’ means an unmarried person under 18 years of age.
(5) ‘Nudity’ means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and the areola only are covered.
(6) ‘Obscene performance’ means a play, motion picture, dance, show or other presentation, whether pictured, animated or live, performed before an audience and which in whole or in part depicts or reveals nudity, sexual conduct, sexual excitement or sado-masochistic abuse, or which includes obscenities or explicit verbal descriptions or narrative accounts of sexual conduct.
(7) ‘Obscenities’ means those slang words currently generally rejected for regular use in mixed society, that are used to refer to genitals, female breasts, sexual conduct or excretory functions or products, either that have no other meaning or that in context are clearly used for their bodily, sexual or excretory meaning.
* * *
(9) ‘Sado-masochistic abuse’ means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(10) ‘Sexual conduct’ means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
(11) ‘Sexual excitement’ means the condition of human male or female genitals or the breats of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity. [Oregon Laws and Resolutions 1971, ch. 743, sec. 255.]
167.065 Furnishing obscene materials to minors. (1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, he furnishes to a minor:
(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sado-masochistic abuse, sexual conduct or sexual excitement; or
(b) Any book, magazine, paperback, pamphlet or other written or printed matter, however reproduced, or any sound recording which contains matter of the nature described in paragraph (a) of this subsection, or obscenities, or explicit verbal descriptions or narrative accounts of sexual conduct, sexual excitement or sado-masochistic abuse.
(2) Furnishing obscene materials to minors is a Class A misdemeanor. Notwithstanding ORS 161.635 and 161.655, a person convicted under this section may be sentenced to pay a fine, fixed by the court, not exceeding $10,000.” Ore. Rev. Stat. secs. 167.060, 167.065 (1974).
During the past 15 years the obscenity problem has taken much of the judiciary’s time and effort.
Mr. Chief Justice Burger, in writing for the majority of the court, pertinently began the Miller opinion with the following words: “This is one of a group of ‘obscenity-pornography’ cases being reviewed by the court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called ‘the intractable obscenity problem.’ Interstate Circuit, Inc. v. Dallas, 390. U.S. 676, 704 [20 L. Ed. 2d 225, 88 S. Ct. 1298].” '
The overall circumstances attendant upon the obscenity problem are well described by the title of Walter Gellhom’s John A. Sibley Lecture, Dirty Books, Disgusting Pictures, and Dreadful Laws,” 8 Ga. L. Rev. 291 (1974). A classical statement on this subject was made by Mr. Justice Stewart in his concurring opinion in Jacobellis v. Ohio (1964), 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. Ct. 1676, where he stated:
“I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
Justices Douglas and Black have been criticized as absolutists, being of the view that expression which is unbrigaded with action may not be subjected go governmental regulation. In his dissent in Roth v. United States (354 U.S. 476), Justice Douglas’s position was stated in the following sentence at page 514: “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Justices Douglas and Black would give the broad sweep of the first amendment full support. The obscenity problem involves censorship — the struggle between attempted social control of materials and conduct alleged to be obscene and the first-amendment concept of freedom of expression. In general, courts have not had signal success in dealing with social problems, e.g., integration, school segregation, bussing and obscenity.
However, in defense of the judiciary, it must be noted that its venture into solving social problems has come about because of the failure of the legislative branch of government to act. The fourteenth amendment was adopted in 1868, and although Congress was given express power to implement the amendment, it took no such action. The social problem of school segregation reached the Supreme Court in 1954, in Brown v. Board of Education (1954), 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, and in Bolling v. Sharpe (1954), 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693.
The legislature is better equipped through hearings and other legislative procedures to determine public desires and needs in this sensitive area and to define prohibited conduct with such specificity so as to proscribe the printing, publishing, the sale or offer of sale, or the display or distribution of materials concerning sexual conduct or activities which can be constitutionally prohibited.
It can define such terms as “prurient interest,” “contemporary community standards,” “patently offensive,” “nudity,” “serious literary, artistic, political, or scientific value” and other terms which presently bring serious construction problems before the courts and which tend to force the courts to legislate, even though interstitially.
While I abhor the traffic in hardcore pornography, I do firmly believe that there should be no punishment without a specific law defining the conduct to be proscribed; and that a criminal statute must give fair warning of the conduct that makes it a crime.