Candor Or Shame? Defining Obscenity by Statute*

The Catholic Lawyer

Volume 13 Number 2 Volume 13, Spring 1967, Number 2 Article 4

Candor or Shame? Defining Obscenity yb Statute

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. CANDOR OR SHAME? DEFINING OBSCENITY BY STATUTE*

THE PROBLEM OF DEFINITION

N 1960, Field and Stream Magazine contained a book review of D. H. Lawrence's controversial work Lady Chatterley's Lover. The reviewer concisely summarized the novel with the comment: This fictional account of the day-by-day life of an English gamekeeper is still of considerable interest to outdoor minded readers, as it certainly contains many passages on pheasant raising, and apprehending of poachers, ways to control vermin and other chores and duties of the professional gamekeeper. Unfortunately, one is obliged to wade through many pages of extraneous material in order to discover and savor these sidelights on the management of a midland shooting estate. In this reviewer's opinion, this book cannot take the place of J. R. Miller's PRACTICAL GAMEKEEPER. However, New York sports enthusiasts wishing to judge the compara- tive merits of Miller and Lawrence were prohibited from purchasing this novel prior to 1960 by the decision of the New York City Postmaster. He banned the book from the mails on the grounds that it was replete with descriptions in minute detail of sexual acts engaged in or discussed by the book's principal characters. These descriptions utilize filthy, offensive and degrading words and terms. Any literary merit the book may have is far outweighed by the pornographic and smutty passages and words, so that the book, taken as a whole, is an obscene and filthy work. (Grove Press, Inc. v. Christenberry, 276 F.2d 434.)

The ban on sale of the novel was removed following a decision of the U.S. District Court for the Southern District of New York, upheld by the United States Court of Appeals, Second Circuit (Grove Press, Inc. v. Christenberry, supra), declaring the book was not obscene.

* Compiled by Sandra Edhlund, Research Analyst, Legislative Reference Bureau, Madison, Wis. Informational Bulletin 66-73, August 1966. 13 CATHOLIC LAWYER, SPRING 1967

The varying opinions displayed by a be deemed obscene if any portion of it sportswriter, postmaster and several tended to exert a corrupting influence on judges concerning a single novel empha- the most easily susceptible elements in size the vagueness of the term "obscenity" the society. Generally, the most easily and the difficulty of applying the term to corruptible element used for this test was specific works. As one man's pornog- youth, and materials could be determined raphy may be another's artistic master- obscene if any portion would tend to piece, devising a clear and concise def- corrupt youth. Although several lower inition by which to judge obscene content courts in the United States disputed the is clearly difficult. However, the general- legitimacy of this test, the Hicklin rule ly prevailing community opinion in the was used in determining obscenity for United States appears to favor some con- most of the century until the United trol of pornographic materials, and both States Supreme Court curtailed the prac- lawmakers and judges are faced with the tice by a decision in 1957. The case task of devising such a definition to pro- which finally contested the legality of the tect the public from grossly pornographic Hicklin rule was Butler v. Michigan, 352 materials without stifling artistic expres- U.S. 380 (1957). The United States sion or violating the First Amendment Supreme Court struck down a Michigan right of free expression. statute based on the Hicklin test, stating that it did so because the statute curtailed AND JUDICIAL TESTS the rights of due process. According to DEFINITIONS the court, by not limiting the legislation been histor- Defining the obscene has reasonably to the evil with which it was a legislative ically a judicial rather than intended to deal, the law forced the adult Early statutory prohibitions on problem. population of Michigan to read only what con- obscene or pornographic literature was fit for children. Having struck down tained vague descriptions of obscene ma- the traditional test for obscenity, the Su- terials as those which would tend to cor- preme Court in the same year accepted was set rupt youth. No further criterion a new one, in Roth v. United States and by statute, and determination of corrup- Alberts v. California, 354 U.S. 476 tive tendencies was left completely to the (1957). courts. For over one hundred years The Roth Test judges have sought general rules by which In Roth, supra, the Supreme Court to determine pornographic content. Sev- faced squarely for the first time the ques- eral major tests have been devised during tion of conflict between prohibiting ob- this period. scene publications and guaranteeing the The Hicklin Rule First Amendment right of free expression. The earliest U.S. court test for ob- The court stated that obscenity is exclud- scenity was devised in England by Sir ed from the protection of the First Alexander Cockburn in Regina v. Hicklin Amendment. (1868), L.R. 3 Q.B. 360. Basically, the All ideas having even the slightest re- decision stated that a publication could deeming social importance-unorthodox DEFINING OBSCENITY

ideas, controversial ideas, even ideas Recent Obscenity Cases hateful to the prevailing climate of Since the Roth decision, several ques- opinion-have the full protection of the tions have been raised concerning the new guaranties. . . . But implicit in the his- from the tory of the First Amendment is the definition. Basically, they derive rejection of obscenity as utterly without vagueness of the criteria. What commu- redeeming social importance. nity standards are to be used? Are they the standards of the nation, state, local court approved the jury in- Also the community or particular social segment structions given in the trial court, as a of the local community, i.e., sexual de- legitimate test for obscenity. viants, religious sects, etc.? How influen- 'The test is not whether it would arouse tial is the stipulation on redeeming social sexual desires or sexual impure thoughts importance? Must all material having a particular segment in those comprising some social importance be exempt from of the community, the young, the immature or the highly prudish or would judgment or does a judgment that such leave another segment, the scientific or material is obscene infer that it is with- highly educated or the so-called worldly- out redeeming social importance and is, wise and sophisticated indifferent and therefore, excluded from protection of the unmoved. . First and Fourteenth Amendments? If 'The test in each case is the effect of the publication is to be considered as a book, picture or publication considered as the a whole, not upon any particular class, whole, can illustrations be judged pruri- but upon all those whom it is likely to ent without considering the text? How reach. In other words, you determine its much weight can be given to the manner impact upon the average person in the of sale or to the motives of the seller? community. The books, pictures and cir- Is prurient interest enough to bring a culars must be judged as a whole, in their entire context, and you are not to con- judgment of obscenity, or must the work sider detached or separate portions in be patently offensive as well? Unfortun- reaching a conclusion. You judge the ately, the Supreme Court has not an- circulars, pictures and publications which swered these questions by setting forth have been put in evidence by present- further strong precedents in this area. day standards of the community. You may ask yourselves does it offend the Three cases before the court in 1966 common conscience of the community by show a great division in the court on the present-day standards.' questions raised by Roth.

The general criteria varied from the Memoirs v. Massachusetts Hicklin test in several important ways. In Memoirs v. Massachusetts, 383 U.S. Rather than the consideration of specific 413 (1966), the majority held that John portions of the material, the test was now Cleland's novel, Memoirs of a Woman of to view the dominant theme of the whole. Pleasure, commonly known as Fanny Material was to be viewed as to its effect Hill, was not obscene. Six justices con- on the mind of the average member of curred in this decision but based their the community, rather than on that of agreement on 3 separate opinions. Jus- the most susceptible. tices Warren, Brennan and Fortas con- 13 CATHOLIC LAWYER, SPRING 1967 curred in the majority opinion, holding restricted from enacting legislation which that a publication could be judged ob- impedes free expression of any idea, obscene only if all 3 elements of the Roth scene or not. They also argue that the test-patent offensiveness to community Fourteenth Amendment makes the pro- standards, dominance of a theme appeal- visions of the First applicable to the ing to the prurient interest and lack of states as well as the federal government, any redeeming social importance-were and therefore both state and federal laws shown to exist in the publication. Fanny banning obscene publications are uncon- Hill might be both patently offensive and stitutional. appealing to the prurient interest, but be- The dissenters were no more harmoni- cause it was considered to have some ous, each issuing a separate opinion. To social importance, it could not be banned Justice Clark, the redeeming social im- as an obscene publication. Foreshadow- portance of the work was not a consid- ing the opinion in Ginzburg v. United eration. According to him, the Roth case States, the 3 justices also concluded that held that only 2 constitutional tests, pa- in the case of a publication such as Fan- tent offensiveness to community standards ny Hill, having minimal social importance and appeal to prurient interest were to and maximum prurient appeal and patent be applied to determine obscenity. In a offensiveness, the manner of sale would separate opinion, Justice White agreed be a relevant factor in deciding whether with Justice Clark that Roth does not in- or not the publication was obscene. How- clude the test of redeeming social import- ever, in this particular case, evidence re- ance. Justice Harlan would apply a dif- lating to manner of sale had not been ferent constitutional standard to regulation brought out in the trial court. of obscenity by states than to regulation In a separate opinion, Justice Stewart by the federal government. He argued concurred on the grounds that Fanny that the federal government should Hill was not "hard core" pornography, be interested in restricting only "hard that "hard core" pornography is that in core" pornography from the mails, but which the elements of patent offensive- the states, responsible for regulating the ness, appeal to prurient interest and no public welfare, had a greater legitimate redeeming social importance coalesce, interest in controlling obscenity. The and that it is only such "hard core" Fourteenth Amendment, in his view, lim- pornography which it is the function of ited the states by demanding that states government to suppress. use rationally applied criteria for such Justices Black and Douglas concurred regulation, but it did not apply to the in the decision, relying on the argument states the stringent constitutional controls they had originally set forth in Roth, that which the First Amendment applied to the First Amendment means exactly what Congress. it says, that "Congress shall make no law Mishkin v. New York abridging freedom of speech or While the Memoirs case demonstrated press." Accordingly Congress should be the lack of agreement in the court con- DEFINING OBSCENITY cerning the proper criteria for testing ob- appealed to the prurient interest and ex- scenity, Mishkin v. New York, 383 U.S. ploited such interest, the actions of a 502 (1966), raised another point of dis- person engaged in such exploitation could pute, that of the community to which be seen as a violation of the federal ob- materials must be patently offensive and scenity law. pruriently appealing. In this case, the Once again, the dissenting opinions publications had been expressly printed were varied. Justice Douglas dissented for and distributed to a clearly defined, again on the grounds that the First sexually deviant group. While such pub- Amendment did not permit censorship of lications would raise disgust rather than an expression of ideas. Justice Black prurient interest in the general commu- concurred in this opinion but added that nity, it was decided that if the material the majority opinion allowed for an un- was designed for and primarily dissem- constitutionally vague interpretation of inated to a clearly defined group of sex- what constituted a crime under the ob- ual deviants, the prurient appeal test scenity law. Justice Harlan dissented could be based on the appeal such ma- both because the statute was vague and terials had for the particular group to because the material considered was not which it was directed. This time, the what he would term "hard core" porn- majority opinion was supported by 5 jus- ography. Justice Stewart agreed with tices, with Justice Harlan concurring and Harlan but further criticized the majority Black, Douglas and Stewart dissenting for opinion, which condemned Ginzburg for the reasons they had set out in Memoirs, his "sordid business," as an arbitrary and supra. unjudicial move by the court. Quite obviously, opinions of the court Ginzburg v. United States in these cases show the court to be in a The most publicized case in this group state of evident confusion in its attempt -and the one which added a new prece- to devise standards and rational criteria dent-was Ginzburg v. United States, for judging obscenity. The variety of 383 U.S. 463 (1966). How firm a pre- opinions which have been set forth, the cedent this decision will set is question- various directions taken in search of cri- able in light of its being a 5 to 4 decision, teria, the problems over the real meaning with a fairly vigorous dissent apparent. of the Roth criteria, all have direct bear- The case concerned publications which ing on the lawmaker in his efforts to were distributed through the mails by devise statutory definitions for the ob- Ralph Ginzburg and for which he was scene. Since Michigan's statute was de- charged with violating the United States clared unconstitutional in 1957, many obscenity statute. The court upheld his states have reconsidered their own ob- conviction not by judging the mailed ma- scenity statutes. States seeking to ban terials as obscene in themselves, but by obscene publications are obliged to devise considering the manner of sale and type legislation which is both effective and in of publicity used to advertise the pub- keeping with the ever-changing require- lications. If the selling techniques used ments set by an indefinite court. 13 CATHOLIC LAWYER, SPRING 1967

STATE OBSCENITY STATUTES fall into several distinct categories and Obscene publications are prohibited by there is little variance among the statutes law in most of the states. Only New within each category. The following table Mexico does not have statutory prohibi- shows the type of defining technique used tions, and it does have provisions allow- by the various states. From each group ing municipalities to restrict publications in the table, a representative statute has considered obscene. Generally, state been selected for more detailed descrip- statutes relating to obscene publications tion.

TECHNIQUES OF DEFINING OBSCENITY IN THE VARIOUS STATES

Multiple Tendency to Tendency to Corrupt No Definition Synonym Corrupt Youth Public Morals Roth Rule

Alabama' Alaska - Hawaii 4 Colorado Arizona Arkansas Delaware Iowa Vermont California Idaho Florida Rhode Island West Virginia Connecticut 5 Kentucky Hawaii 4 Texas Georgia Maryland Indiana Wyoming Illinois Massachusetts Maine Kansas Montana 2 Missouri Louisiana North Dakota Michigan South Dakota Minnesota Washington Mississippi Wisconsin Nebraska Nevada New Hampshire New Jersey New York6 North Carolina Ohio Oklahoma Oregon Pennsylvania South Carolina Tennessee Utah 7

1 Nude pictures in art galleries are exempt , Prohibits articles nonmailable under federal from prohibition. law. 2 Forbids sale to minors only. 6 Considers presentation of material and man- 3 Restricts comic books only. ner of sale. 4 Uses both multiple synonym and tendency to 7 Defines community. corrupt youth. DEFINING OBSCENITY

The Wisconsin Statute - No Court struck down a statute which made Definition it a crime to distribute literature so The present Wisconsin obscenity stat- massed as to incite violence and depravity ute side-steps the problem of defining ob- (Winters v. New York, 333 U.S. 523 scenity by not defining it at all. The (1948)) and a statute which prohibited "sacrilege" (Burstyn v. statute, Section 944.21, reads: Wilson, 343 U.S. 495 (1952)) because as Justice Reed LEWD, OBSCENE OR INDECENT MATTER, PICTURES AND PER- stated in Winters, "Where a statute is so FORMANCES. (1) Whoever inten- vague as to make criminal an innocent tionally does any of the following may act, a conviction under it cannot be sus- be fined not more than $5,000 or im- tained." Under such a standard it is pos- prisoned not more than 5 years or both: sible that the words "obscene" and "in- (a) Imports, prints, advertises, sells, has in his possession for sale, or pub- decent" may eventually come under at- lishes, exhibits, or transfers commercially tack on this ground. any lewd, obscene or indecent written The Florida Example- Definition matter, picture, sound recording, or film; or by Multiple Synonyms (b) Has in his possession any lewd, Some states, in an effort to specify the obscene or indecent sound recording or meaning of obscene, have defined obscene motion picture film; or by using numerous synonyms. (c) Has in his possession, with intent The Florida statute offers a good ex- to transfer or exhibit to a person under the age of 18 years, any matter prohibited ample of this type. Section 847.011 by this section; or states: (d) Advertises, produces or performs Prohibition of certain acts in connection in any lewd, obscene or indecent per- with obscene, lewd, etc., materials; penalty formance. (1) (a) A person who knowingly sells, (2) Whoever requires, as a condition to lends, gives away, distributes, transmits, the purchase of periodicals, that a retailer shows or transmutes, or offers to sell, accept material known by the distributor lend, give away, distribute, transmit, to be lewd, obscene or indecent may be show or transmute, or has in his pos- fined not more than $5,000 or imprisoned session, custody, or control with intent not more than 5 years or both. to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any By not defining "lewdness," "obscen- manner, any obscene, lewd, lascivious, ity" or "indecency," this statute escapes filthy, indecent, immoral, sadistic, or the fate of the specific definition in the masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story 1957 Michigan statute, which was struck paper, written or printed story or article, down as not in keeping with the court's writing, paper, card, picture, drawing, concept of constitutionality. The statute, photograph, motion picture film, figure, however, lacks any concrete criteria for image, phonograph record, or wire or tape judging such "lewd, obscene or indecent" or other recording, or any written, printed, or recorded matter of any such character materials, leaving the courts to set stand- which may or may not require mechanical ards. Also, it may be open to charges of or other means to be transmuted into vagueness. In the past, the Supreme auditory, visual, or sensory representations 13 CATHOLIC LAWYER, SPRING 1967

of such character, or any article or in- ruptible, particularly the young. Section strument of indecent or immoral use, or 725.4 of the Iowa Statutes states: purporting to be for indecent or im- If any person imports, prints, publishes, moral use or purpose; or who knowingly sells or distributes books, pamphlets, designs, copies, draws, photographs, poses ballads, or any printed or written paper for, writes, prints, publishes, or in any, containing any obscene language tending manner whatsoever manufactures or pre-, to corrupt morals of youth, or buys, pro- pares any such material, matter, article, cures, receives or has in his possession or thing of any such character; or who any such material spoken of above, he knowingly writes, prints, publishes, or shall be imprisoned for not more than utters, or causes to be written, printed, one year or fined not more than $1,000. published, or uttered, any advertisement or notice of any kind, giving information, The Michigan statute which used the directly or indirectly, stating, or purport- same test was declared unconstitutional ing to state, where, how, of whom, or by what means any, or what purports to by the United States Supreme Court in be any, such material, matter, article, or 1957 (see Butler v. Michigan, supra). thing of any such character can be pur- chased, obtained, or had; or who in any Colorado - Corrupting the manner knowingly hires, employs, uses, Public Morals or permits any person to do or assist in The Colorado statute prohibits distri- doing, either knowingly or innocently, any act or thing mentioned above, is guilty bution of obscene, lewd, or indecent mat- of a misdemeanor and shall be punished ter "directed to the prurient interest to by imprisonment in the county jail not corrupt morals." Section 40-9-17 (1) of exceeding one year or by fine not exceed- the Colorado Statutes states: ing $1,000.00, or both. Exhibiting, selling, or possessing obscene books - penalty. - (1) Whoever Although this technique certainly accen- knowingly exhibits, lends, gives away, tuates obscene, it does not seem to clarify sells, or offers to exhibit, lend, give away, its meaning. What is gained through or sell, or in any manner publishes, or dramatic emphasis, is lost in readability. offers to publish, or has in his possession, for any such purpose, any obscene, lewd, The initial list of actions, the long list of or indecent, or lascivious book, pamphlet, synonyms for obscene, and the long list paper, drawing, print, picture, writing, of matter which is to be included result advertisement, circular, or other repre- in a very cumbersome and confusing sentation, figure, or image, on, or of statute. paper or other material; or any cast, instrument, or other article of an immoral Iowa - The Hicklin Test or indecent nature; or any drug, or medicine or instrument for procuring Whereas the preceding example de- abortion, or for self-pollution; or any scribed matter which was obscene on its newspaper, or magazine, containing pic- face, this and the following tests relate tures of men or women in indecent atti- to the material's effect on a reader. The tudes or positions, or which publishes, by Iowa statute contains the test found in pictures or descriptions, indecent or immoral details of crime, vice, or immorality, Hicklin, supra, banning matter a portion to corrupt public morals, or to offend of which would tend to corrupt the cor- common decency, or to make vice and DEFINING OBSCENITY

crime, immorality and licentiousness at- takes its definition almost verbatim from tractive, or advertises the same for sale; the Roth decision. Section 28.575 (2) or writes, or prints, or causes to be sold, of the Michigan Statutes states: or written, or printed, any card, circular, letter, handbill, book, pamphlet, advertise- § 28.575 (2) Test applied to determine ment, or notice thereof, of any kind; or obscenity of book, picture or object. gives information orally, or otherwise, SEC. 343b. The test to be applied in stating when, where, how, or of whom or cases under section 343a of this act shall by what means any of the articles or not be whether sexual desires or sexually things hereinbefore mentioned can be pur- improper thoughts would be aroused in chased or otherwise obtained, or are those comprising a particular segment of manufactured, or published; or manufac- the community, the young, the immature tures, draws, or prints, or in any wise or the highly prudish, or would leave makes, with intent to exhibit, sell, lend, or another segment, the scientific or highly give away, or have exhibited, sold, loaned, educated or the so-called worldly wise and or given away, any such articles or things, sophisticated, indifferent and unmoved. which are directed to the prurient interest But such test shall be the effect of the to corrupt morals, shall be guilty of a book, picture or other subject to com- misdemeanor and, on conviction thereof, plaint considered as a whole, not upon shall be fined not less than one hundred any particular class, but upon all those dollars nor more than two thousand dol- whom it is likely to reach, that is, its lars with costs of court, and imprisoned impact upon the average person in the in the county jail for not less than one community. The book, picture or other month, nor more than one year. Nothing subject of complaint must be judged as in sections 40-9-17 to 40-9-19 shall be a whole in its entire context, not by con- construed to affect teaching in regularly sidering detached or separate portions chartered medical colleges, or the publi- only, and by the standards of common cation, sale, and use of standard medical conscience of the community of the con- books, or the practice of regular practi- temporary period of the violation charged. tioners of medicine, or druggists in their legitimate business. The ambiguity in Roth which plagues the courts is also troublesome in drafting This statute again is cumbersome. statutes. Utah adopted the Roth stand- However, the tendency to corrupt public ard but, in an attempt at a more precise morals or to offend common decency is a meaning, sought to define community definition similar to the Roth definition as the community of "patently offensive to the average of the State of Utah. (Utah member of the community." Statutes, 76-39-11.)

The Michigan Law - Incorporating OTHER SUGGESTED Roth into the Statute DEFINITIONS The present Michigan statute is an ex- Definition Relating to Sales ample of the most recent trend in the In keeping with the recent judicial em- drafting of obscenity statutes: the incor- phasis on manner of sale is the New poration of all or portions of the Roth York State statute relating to prohibited definition into the statutory test for ob- publication. The general obscenity stat- scenity. Already, 23 states have adopted ute for New York uses the Roth defini- this definition. The Michigan statute tion. However, the section dealing spe- 13 CATHOLIC LAWYER, SPRING 1967 cifically with publication prohibits pub- considered as a whole, upon the sexual lication of matter specifically designed to behavior of readers typical of the class exploit prurient interest commercially. of persons to whom the printed matter is primarily directed; Section 1141 (5) of the New York Stat- (c) the artistic, literary, scientific, and ute states: educational values of the printed matter, 5. The publication for sale of any considered as a whole; and book, magazine or pamphlet designed, (d) the intent of the author and pub- composed or illustrated as a whole to ap- lisher in writing and publishing the print- peal to and commercially exploit prurient ed matter. interest by combining covers, pictures, Section 7. (1) In making a decision drawings, illustrations, caricatures, car- on the obscenity of the printed matter, toons, words, stories and advertisements the district court shall consider, among or any combination or combinations other things, each of the matter specified thereof devoted to the description, por- in Section 6 (2) and shall include a trayal or deliberate suggestion of illicit written determination on each matter sex, including adultery, prostitution, either in his findings of fact and conclu- fornication, sexual crime and sexual sions of law or in a memorandum ac- perversion or to the exploitation of sex companying them. and nudity by the presentation of nude or partially nude female figures, posed, This type of statute would not define photographed or otherwise presented in a the obscene, leaving the definition com- manner calculated to provoke or incite pletely up to the court, but it would de- prurient interest, or any combination or fine the criteria which the court must combinations thereof, shall be a violation consider in arriving at its decision. of this section. Defining Criteria for Judging Restricting Sale Only to Minors Obscenity The Montana law on obscenity restricts In 1960, the Council for Independent sale of obscene materials only to minors. Distribution, Merchandise Mart Plaza, Section 94-3601 states: Chicago, published a draft model obscen- 94-3601. (11134) Obscene literature ity statute, which was primarily concerned not to be given to or sold by minors. (1) It is unlawful for any person to sell, with the process by which matter would lend, give away, distribute, resell, or re- be judged obscene. Among the suggested distribute, show, or have in his posses- laws relating to the process of adjudging sion with intent to sell, give away, dis- such materials was a section devoted to tribute, resell, or redistribute, or to show the type of evidence to be considered in or advertise or otherwise offer for loan, gift, or distribution, to any minor child, a decision of this type. Section 6 (2) of under the age of eighteen (18) years, this model draft lists these pertinent areas any book, pamphlet, magazine, newspa- as per, lewd picture, story paper, so-called (a) the class of persons comprising the comic book, or other printed, mimeo- audience to which the printed matter is graphed or published matter, devoted to primarily directed by its nature and the the publication or principally made up of manner of its publication, advertisement, criminal news, police reports, or accounts distribution, and sale; of criminal deeds, or pictures and stories (b) the effect of the printed matter, of lust or crime, or portraying sexually DEFINING OBSCENITY

indecent conduct or subject-matter, or statehood and is found as Chapter 139, portraying the planning or committing of Section 11, in the first Wisconsin Statutes deeds of crime, violence, horror, brutal- in 1849. It prohibited the sale or distri- ity, immorality or vice. It shall be un- bution of printed matter described as lawful to exhibit upon any street or high- "manifestly tending to the corruption of way, or in any place within the view of This definition re- any minor child under the age of eigh- the morals of youth." teen (18) years, or to hire, use, employ, mained on the statute books until 1941. or permit such child to sell or give away At that time, Chapter 322, Laws of or in any manner distribute any such 1941, was enacted to delete "manifestly" book, pamphlet, magazine, lewd picture, and "of youth." The statute now de- newspaper, story paper, so-called comic scribed the materials prohibited as "tend- book or publication or other printed, ing to the corruption of the morals." mimeographed, or published matter above described. This description remained in the statutes (2) The prohibitions and penalties im- until the first revision of the Criminal posed hereby shall not extend to pub- Code was devised in 1953. lications within any constitutional guar- The 1953 revision made the first statu- antee of freedom of the press or freedom tory attempt to prescribe an actual def- of religious worship, nor to publications privileged for medical instruction, privi- inition of obscenity. The statute used the leged as official law enforcement bulle- word "lewd" rather than "obscene" and tins or publications, nor to publications defined materials possessing "lewdness" or reproductions of bona fide works of as being those in which the "dominant literature and the fine arts. effect of the thing, taken as a whole, is Justice Frankfurter, in his dissenting one of sexual obscenity." According to opinion in the Winters case, considered the Legislative Council's note accompany- this to be one of the statutes throughout ing this section, the definition was taken the country that would fall under the ma- from the opinion of Judge Augustus jority decision in the case as "void for Hand in United States v. One Book en- vagueness." (Winters v. New York, titled Ulysses by James Joyce, 72 F.2d supra.) The vagueness here concerned 705 (2d Cir. 1934). The stated purpose the description of the types of material of the council in inserting this definition prohibited, that is, those dealing with was to do away with the difficulty experi- violence, etc. However, since this restric- enced under statutes, like the old section, tion was placed only on materials sold to which had been held to bar genuine minors, it would appear to be in keeping works of literature written not for ob- with the court's decision in the Butler v. scene purposes, but to portray certain Michigan case, supra. events or classes of people realistically. The note further stated that "by this THE DEVELOPMENT OF THE standard there would be no question that WISCONSIN STATUTE a scientific work on physiology or a de- Early Definitions cently written marriage manual is not The first Wisconsin law prohibiting ob- lewd literature. On the other hand, lewd- scene literature was enacted prior to ness cannot be diluted by putting it in 13 CATHOLIC LAWYER, SPRING 1967 with something which is acceptable. For and the motion was carried. example, a lewd picture on the cover of This is the present status of the Wiscon- a book is not saved by the fact that the sin obscenity statute. The problem of story inside is decent; a lewd passage in defining obscene continues to plague the a book which has no relation to the work Legislature. as a whole is prohibited." The purpose of the new definition was to exclude Legislation Considered in "legitimate works of literature, art, or Wisconsin science by use of more definite language." In the 1965 session, 3 bills introduced Whether or not this definition would have were concerned with some modification accomplished these objectives was not de- of the use of obscene. Senate Bill 340 termined, however, because the code did related to a definition for the general ob- not become effective in its 1953 form.1 scenity section. Senate Bills 26 and 102 The 1955 Code deleted the definition related to a definition limited to sale to and simply prohibited any printed matter minors. which was "lewd, obscene or indecent." Senate Bill 340 was drafted for Sena- The Criminal Code Advisory Committee tor Gordon Roseleip. Drafting instructions minutes for March 26, 1955, reported were submitted by the American Legion. the reasoning behind the deletion of the A resolution of the Legion at its 1964 definition as follows: state convention expressed uneasiness at After lengthy discussion concerning the the lack of definition for obscenity in the definition of "lewd and obscene", which Wisconsin Statutes. It suggested that the Mr. Remington said was a very substan- statute be amended to include the defini- tial change in the law that would require tion of obscenity found in Webster's Dic- the expurgation of about 1/3 of the books on library shelves, and which he tionary. This definition would be: "'Ob- felt would meet with serious opposition scene' means offensive to chastity of mind on the part of publishers. Mr. Bard- or to modesty; expressing or presenting well moved that the definition of "lewd to the mind or view something that deli- and obscene" be stricken from Sections cateness, purity and decency forbid to be 344.21, 344.215 and 344.216 of the exposed; lewd; or indecent." This def- Code, so that the Code does not con- tain a definition of those words. Mr. inition is different from the others in that Myers seconded the motion and the mo- it describes the nonobscene as well as the tion was carried. obscene. The bill was tabled. There was Mr. Hughes then moved that said three no roll call vote on it. sections be amended by changing the Senate Bill 26, introduced by Senator words "lewd and obscene" wherever they appear to be "lewd, obscene or indecent". Leonard et al., related only to sale and Judge Goodland seconded the motion, distribution to minors. It prohibits material which is "lewd, obscene or indecent 'The Code enacted by the 1953 Legislature • .. and exploits .. .illicit sex or sexual was not to be adopted until the Criminal Code immorality . . . nude figures posed or Advisory Committee had submitted amendments to the 1955 Legislature. One of the presented in a manner to provoke or amendments changed this section. arouse lust or passion or to exploit sex, DEFINING OBSCENITY lust or perversion for commercial gain." filthy." According to the Wisconsin At- The bill also stated that the Legislature torney General's opinion (54 OAG 152), found the above described materials to this provision would be unconstitutional be "completely without social value and as a violation of Article VII, Section 21, • . . obscene for persons under 18 years of the Wisconsin Constitution, because it of age." The pandering principle-that did not specify the particular regulations is, the commercial exploitation of pruri- of the U.S. Post Office to be included. ent interest-is also alluded to in pro- This amendment was rejected by voice hibiting exploitation of illicit sex or sex- vote. ual immorality. The bill was withdrawn Substitute Amendment 3, S., which by the authors, who were also the au- passed the Senate, contained both the thors of Senate Bill 102. definition from Justice Learned Hand and Only one bill was passed in the house the stipulation regarding the United States of introduction and sent to the other mails. house. That was Senate Bill 102. As In the Assembly further amendments this bill was amended a number of times were proposed and further changes were in each house, it offers examples of sev- made in definition. Substitute Amend- eral types of definitions. Using the ment 1, A., would have abandoned the synonym method, the bill as introduced definition of obscenity as the critical point defined obscene materials as those which beween candor and shame and would were obscene, lewd, lascivious, porno- have inserted instead the Roth definition, graphic or indecent. that obscenity is material "patently of- Substitute Amendment 1, S., to the fensive and which predominately appeals bill supplied a definition that "obscenity to the prurient interest of the average is the present critical point in the com- person applying contemporary community promise between candor and shame at standards of decency." which the community has arrived here Amendment 1, A., to Substitute and now." The definition would apply Amendment 1, A., would have deleted the present community standards doctrine this definition. Substitute Amendment 2, from Roth and was originally used by A., returned to the definition in the Judge Learned Hand in United States v. original bill of material "made up of Kennerley, 209 Fed. 119. This amend- descriptions of illicit sex or sexual ment was rejected in the Senate. There morality or . . . (of nude figures) was no roll call vote. presented in a manner to provoke or Substitute Amendment 2, S., added a arouse lust or passion or to exploit sex, stipulation that it be unlawful "to send lust or perversion or which advertises or receive by any public or commercial services, facilities or articles for sexual vehicle or conveyance, within the state, deviation." On this definition the At- any matter which is unmailable under torney General's opinion stated that the U.S. postal regulation, because it is test must be patent offensiveness and deemed obscene, lewd, lascivious or prurient appeal, not whether it portrays 13 CATHOLIC LAWYER, SPRING 1967 illicit sex, sexual immorality or pro- 2. Is patently offensive to prevailing vocative nude figures, that similar standards in the adult community as a definitions had been termed unconstitu- whole with respect to what is suitable material for minors, and tional by the New York Court of Appeals. 3. Is utterly without redeeming social (People v. The Book Case, Inc., 14 N.Y. importance for minors. 2d 409 (1964).) (g) "Knowingly" means having knowl- The most descriptive definition of edge of both: 1. The character and content of any obscenity was in Section 5 of Substitute material described in this section, or Amendment 3, A. failure to exercise reasonable inspection (a) "Minor" means any person under which would disclose the character and the age of 18 years. content of the material, but an honest (b) "Nudity" means the showing of and bona fide mistake shall constitute an the human male or female genitals, pub- excuse to liability under this section. ic area or buttocks with less than a fully Whether inspection is reasonable shall be opaque covering, or the showing of the determined by considering the size of the female breast with less than a fully merchant's business, the character of his opaque covering or any portion thereof books and clientele, the number of his below the top of the areola or the depic- employees, and any other variable factor tion of covered male genitals in a dis- which might affect his ability to inspect cernibly turgid state. without limiting his merchandise. Proof (c) "Sexual conduct" means acts of that a defendant had knowledge of the masturbation, homosexuality, sexual in- obscene character and content of the ma- tercourse or physical contact with a per- terial may be made by showing that the son's clothed or unclothed genitals, pubic material had been adjudicated obscene in area, buttocks or, if such person be a a prior proceeding under S. 269.565 and female, breast, which contact is made as notice of such adjudication had been giv- an act of sexual stimulation or grati- en in writing to the defendant; and fication. 2. The age of the minor, but an hon- (d) "Sexual excitement" means the est mistake shall constitute an excuse condition of human male or female gen- from liability hereunder if the defendant itals when in a state of sexual stimulation made a reasonable bona fide attempt to or arousal. ascertain the true age of such minor. (e) "Sadomasochistic abuse" means Although votes were taken on several flagellation or torture by or upon a per- amendments to Substitute Amendment 3, son clad in undergarments, a mask or bizarre costume, or the condition of be- A., none of these related to the definition ing fettered, bound or otherwise physical- sections. There were no votes on the 3 ly restrained on the part of one so Assembly substitute amendments. The clothed. bill was finally referred to the Committee (f) "Harmful to minors" means that on the Judiciary. quality of any description or representa- tion, in whatever form, of nudity, sexual CONCLUSION conduct, sexual excitement, or sadomaso- None of the bills defining obscenity chistic abuse, when it: 1. Predominately appeals to the pruri- were enacted by the 1965 Wisconsin ent, shameful or morbid interest of min- Legislature, and the question continues to ors, and (Continued on page 170) 13 CATHOLIC LAWYER, SPRING 1967

before the public eye would be subject As noted, many questions concerning to even a greater privilege, perhaps even defamation and privacy actions remain an absolute one, protecting statements unanswered. Answers will come; Time, about him which might otherwise violate Inc. v. Hill is but one of the building his right of privacy. Thus, even on a blocks as the Supreme Court measures the showing of actual malice, no redress would communication torts by the guarantees of be afforded a public official in a right of the first amendment. privacy action.

DEFINING OBSCENITY

(Continued) be debated. Presently, the Wisconsin accordance with the United States Statutes uses "lewd, obscene and in- Supreme Court's view of a constitutional decent" without defining them, leaving the definition. definition to the courts. By its decision The prevailing view of the United in State v. Chobot, 12 Wis. 2d 110 States Supreme Court is based on the (1960) and McCauley v. Tropic of Can- Roth decision. The present majority cer, 20 Wis. 2d 132 (1963), the Wis- interpretation is that the Roth standard consin Supreme Court has defined the includes 3 specifications: 1) the dom- statutory term "obscenity" as equivalent inant theme on the whole appeals to the to the Roth definition and has required prurient interest, 2) it is patently offen- the Roth standard for judging materials sive to present community standards, and obscene. Thus, obscenity is defined in 3) it contains no redeeming social value.

ST. THOMAS MORE

(Continued) tyranny, More said: "You must pardon all good company." me from passing as you pass, but if I In the final analysis, More is the con- thought in the matter as you do, I dare temporary man because he is the type of not in such a matter pass for good com- man we need. A man willing to make pany. For the passage of my soul passes his own frightening judgments. A man.