Dunaj, Sherryll M.

English

University of Miami School of Law

University of Miami Law Review Volume 24 Number 1 Article 11 10-1-1969 Constitutional Law -- Private Possession of Obscene Films Where There is no Intent to Sell, Circulate, or Distribute Sherryll M. Dunaj Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Sherryll M. Dunaj, Constitutional Law -- Private Possession of Obscene Films Where There is no Intent to Sell, Circulate, or Distribute, 24 U. Miami L. Rev. 179 (1969) Available at: https://repository.law.miami.edu/umlr/vol24/iss1/11 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. 1969] CASES NOTEDtirely consonant with the stated purpose of the amount incontroversy requirement, to avoid having the federal courts"fritter away their time in the trial of petty controversies."A good deal of ancient learning will have to be forgotten, how-ever, if this practical and sensible result is to be reached.2"Strangely enough, Mr. Justice Black, who delivered the opinion of theCourt in the decisions under consideration, once expressed his own ap-prehension that the Rules might be restrained from reaching their fullworkability and indeed prophesied the result of the instant decision.In a dissenting opinion he wrote:It does no good to have liberalizing rules like 60(b) if, afterthey are written, their arteries are hardened by this Court'sresort to ancient common-law concepts.24LINDA M. RIGOTCONSTITUTIONAL LAW-PRIVATE POSSESSION OFOBSCENE FILMS WHERE THERE IS NO INTENTTO SELL, CIRCULATE, OR DISTRIBUTEAfter spending nearly an hour viewing three eight-millimeter filmsof "nude men and women engaged in sexual intercourse and sodomy,'which had been unearthed during a search of the appellant's home forgambling paraphernalia under the aegis of a search warrant, police offi-cers arrested the appellant for possession of material which he knew to beobscene, in violation of Georgia law.2 Defendant's conviction by a jury23. 2 BARRON & HOLTZoFF, FEDERAL PRACTICE AND PROCEDURE § 569 (Supp. 1968)(Wright ed. 1961).24. Ackermann v. United States, 340 U.S. 193, 205 (1950).1. Stanley v. State, 224 Ga. 251, 252, 161 S.E.2d 309, 319 (1968).2. Any person who shall knowingly bring or cause to be brought into this State forsale or exhibition, or who shall knowingly sell or offer to sell, or who shall know-ingly lend or give away or offer to lend or give away, or who shall knowingly havepossession of, or who shall knowingly exhibit or transmit to another, any obscenematter, or who shall knowingly advertise for sale by any form of notice printed,written, or verbal, any obscene matter, or who shall knowingly manufacture, draw,duplicate or print any obscene matter with intent to sell, expose or circulate thesame, shall, if such person has knowledge or reasonably should know of the obscenenature of such matter, be guilty of a felony . . . . As used herein, a matter isobscene if, considered as a whole, applying contemporary community standards,its predominant appeal is to prurient interest, i.e., a shameful or morbid interestin nudity, sex or excretion. (Emphasis added.)GA. CODE ANN. § 26-6301 (Supp. 1968).Under FLA. STAT. § 847.011(1) (a) (1967), it is a felony to possess obscene materialswith the intent to sell, distribute, etc. However, under FLA. STAT. § 847.011(2) (1967), merepossession of obscene matter is a misdemeanor:A person who knowingly has in his possession, custody, or control any obscene,lewd, lascivious, filthy, indecent, immoral, sadistic, or masochistic book, magazine,UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXIVwas affirmed by the Supreme Court of Georgia, which held that the ele-ment of intent to sell, distribute, or circulate obscene matter is not essen-tial to an indictment and conviction for possession of obscene materials.'On certiorari to the United States Supreme Court, held,4 reversed: as-suming -the films to be obscene under current tests,5 the First and Four-teenth Amendments forbid making the mere private possession of obscenematerial a crime where there is no intent to sell, distribute, or circulatethem. Stanley v. Georgia, 394 U.S. 557 (1969).Roth v. United States6 declared that obscenity would not be pro-tected by the first amendment from governmental suppression. 7 Theissue in subsequent cases then became whether or not the particularmaterial in question was "obscene." The tests which have evolved are notclear-cut; 8 it appears that a majority of the Supreme Court has yet toagree upon a single definition of "obscenity."9periodical, pamphlet, newspaper, comic book, story paper, written or printed storyor article, writing, paper, card, picture, drawing, photograph, motion picture film,figure, image, phonograph record, or wire or tape or other recorded matter of anysuch character which may or may not require mechanical or other means to betransmuted into auditory, visual, or sensory representations of such character, orany article or instrument of indecent or immoral use, or purporting to be forindecent or immoral use or purpose, without intent to sell, lend, give away, dis-tribute, transmit, show, transmute, or advertise the'same, is guilty of a misde-meanor . . . . In any prosecution for such possession, it shall not be necessary toallege or prove the absence of such intent. (Emphasis added.)3. Stanley v. State, 224 Ga. 251, 161 S.E.2d 309 (1968).4. Three concurring Justices would have reversed on the ground that the search wasin violation of the fourth amendment, because the warrant was issued for the search andseizure of gambling devices rather than obscene materials. The Justices cited United Statesv. Rabinowitz, 339 U.S. 56, 62 (1949), wherein the Court held that "exploratory searches... cannot be undertaken by officers, with or without a warrant."Cf. Marcus v. Search Warrant, 367 U.S. 717 (1961), where the Court indicated thatobscenity cannot be treated in the same manner as contraband, such as gambling devicesor liquor, for obscene matter cannot be recognized on sight. See generally Annot., 5A.L.R.3d 1214 (1966).5. In Roth v. United States, 354 U.S. 476, 489 (1957), the Court set forth the test forobscenity:[Wlhether to the average person, applying contemporary community standards,the dominant theme of the material taken as a whole appeals to prurient interest.Roth held that obscenity is not protected by the first amendment, because it is "withoutredeeming social importance." Id. at 484.However, in Redrup v. N.Y., 386 U.S. 767 (1967), the Court indicated that the Justiceshad not themselves agreed upon a single test. Two members of the 1967 Court, accordingto Redrup, would not allow the States to suppress any material whatsoever on the groundof obscenity. One member would allow the States the power to suppress only a distinct,clearly identified class of obscene matter. Other members would not allow the States tosuppress obscenity unless (1) the dominant theme of the material as a whole appeals tothe prurient interest in sex, (2) it is patently offensive because it affronts contemporarycommunity standards, and (3) it is utterly without redeeming social value. Of those mem-bers who adhere to the last test, some require all three elements to "coalesce," but at leastone Justice regards social value as an independently significant element.The three-pronged test for obscenity stated above was first articulated in the opinionby Justice Brennan in Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).See generally Annot., 5 A.L.R.3d 1158 (1966).6. 354 U.S. 476 (1957).7. Id.8. See note 5 supra.9. Redrup v. United States, 386 U.S. 767 (1967) ; see note 5 supra.1969] CASES NOTEDThe Court, in the instant case, assumed the films to be obscene;'°yet, it extended first amendment protection to them. Although the Courtrecognized that the States possess broad power to regulate obscenity, theCourt refused to extend that power to regulation of the mere privatepossession of such matter. It may seem that the extension of first amend-ment protection to the films in Stanley is inconsistent with the Rothcase." However, Stanley may be distinguished from prior obscenitycases 12 which have reached the United States Supreme Court, in that theyhave all dealt with "public actions taken ...with respect to obscenematter," 3 such as the use of the mails or interstate commerce, or thesale, distribution, or publication of such matter. The unique feature inthe present case is that the State of Georgia sought to punish mereprivate possession.Thus the Court, in distinguishing Stanley from Roth and otherobscenity decisions, has redefined the constitutional requirements formaking the possession of "obscenity" a crime. The matter can no longerbe "obscene" for criminal conviction purposes unless it is publicly dis-tributed, circulated, or sold. One element of the offense, therefore, is"public action." And what may be obscene if sold or distributed may beprotected by the first amendment when kept for private use.By this case, it appears that the court has taken another step inexpanding and developing the "right of privacy," first clearly enun-FLA. STAT. § 847.011(10) (1967) utilizes the Roth test for obscenity:Whether to the average person, applying contemporary community standards, thedominant theme of the material taken as a whole appeals to the prurient interest.In Fort v. City of Miami, 195 So.2d 53 (Fla. 3d Dist. 1967), cert. denied, 389 U.S. 918(1967), reh. denied, 389 U.S. 997 (1967), the petitioner was convicted for violating a city ordi-nance incorporating FLA. STAT. § 847.011(1) (a) (1967), which makes it a felony to possessobscene matter with the intent to sell, distribute, .and so on. Petitioner had created andoffered for sale in his back yard six fiberglass statues, which were, apparently, adjudgedobscene. Justices Stewart, Black, and Douglas, dissenting from the denial of certiorari,commented:It is clear that the ordinance under which [the petitioner] was convicted is uncon-stitutional on its face. That ordinance adopts the definition of obscenity embodiedin a Florida Statute [§ 847.011(10) (1967)].Members of this Court have expressed differing views as to the extent of aState's power to suppress "obscene" material through criminal or civil proceedings.But it is at least established that a State is without power to do so upon the soleground that the material "appeals to the prurient interest."The petitioner in this case was charged, tried, and convicted under a statutoryprovision which contains no other criterion of "obscenity." This conviction thereforerests upon a law incompatible with the guarantees of the First and FourteenthAmendments. Id. at 919-20.See State ex tel. Hallowes v. Reeves, 224 So.2d 285 (Fla. 1969), where the-court reversedthe trial court decisions holding FLA. STAT. § 847.011(10) (1967) unconstitutional, on theauthority of State v. Reese, 222 So.2d 732 (Fla. 1969).10. Stanley v. Georgia, 394 U.S. 557, -, 89 S. Ct. 1243, 1244n.2 (1969).11. Roth v. United States, 354 U.S. 476, 484 (1957).12. The issue of mere private possession of obscene materials was before the Courtonce before in Mapp v. Ohio, 367 U.S. 643 (1961); however, the case was decided onfourth amendment search and seizure grounds. See Stanley v. Georgia, 89 S.Ct. at 1245-46n.n. 5 & 6.13. Stanley v. Georgia, 89 S.Ct. at 1246.UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXIVciated in Griswold v. Connecticut.14 In Griswold, the Court struckdown a Connecticut statute making the use of contraceptives a crim-inal offense. The Court said that a statute forbidding the use ratherthan circumscribing the manufacture or sale of contraceptives invadeda "zone of privacy" protected by the Constitution. 5 In Stanley, theCourt cited Griswold and said:[F]undamental is the right to be free . . . from unwantedgovernmental intrusions into one's privacy.[The appellant] is asserting the right to read or observewhat he pleases-the right to satisfy his intellectual or emo-tional needs in the privacy of his own home.Whatever may be the justification for other statutesregulating obscenity, we do not think they reach into the pri-vacy of one's home.' 6It may appear that, since this decision forbids the States frommaking mere possession of obscene material a crime, the Court is mov-ing in a new direction and may hold other "possession" laws uncon-stitutional. However, the Court stated that statutes making criminalthe possession of other items, such as narcotics, firearms, or stolengoods, will not be impaired by the instant decision because ordinarilyno first amendment rights are involved.' On the other hand, the casemay nulify state statutes, such as Florida Statute § 847.011(2) (1967), 1114. 381 U.S. 479 (1965); see Olmstead v. United States, 277 U.S. 438 (1928); Boyd v.United States, 116 U.S. 616, 630 (1886); Warran & Brandeis, The Right to Privacy, 4HARV. L. REv. 193 (1890); Beaney, The Griswold Case and the Expanding Right toPrivacy, 166 Wisc. L. REv. 979 (1966).15. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).The Court described these "zones of privacy" or "penumbras" thus:[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanationsfrom those guarantees that help give them life and substance. Various guaranteescreate zones of privacy. The right of association contained in the penumbra ofthe First Amendment is one .... The Third Amendment in its prohibition againstthe quartering of soldiers "in any house" in time of peace without the consent ofthe owner is another facet of that privacy. The Fourth Amendment explicitlyaffirms the "right of the people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures." The Fifth Amendment in itsSelf Incrimination Clause enables the citizen to create a zone of privacy whichgovernment may not force him to surrender to his detriment. The Ninth Amend-ment provides: "The enumeration in the Constitution of certain rights, shall not beconstrued to deny or disparage others retained by the people."Id. at 484.16. Stanley v. Georgia, 89 S.Ct. at 1247-48 (emphasis added).17. Id. at 1249-50n.11.18. See note 2 supra. But see State v. Reese, 222 So.2d 732, 736 (Fla. 1969) (citingStanley, holding statute not void on its face.)It may be that the test used in FLA. STAT. § 847.011(1)(b) (1967) to determine thepresence of the necessary element of intent to distribute, sell, or circulate, may also benullified by the case noted herein. The statute provides:The knowing possession by any person of six or more identical or similarmaterials, matters, articles, or things coming within the provisions of [§ 847.011(1)(a)] is presumptive evidence of the violation of said paragraph. (Emphasisadded.)CASES NOTEDwhich make mere possession of obscenity a crime. It should be notedthat prior to the Stanley case, some states had already construed theirobscenity statutes as unconstitutional when utilized to punish merepossession of obscene matter.' 9It remains to be seen how narrowly or broadly this decision willbe construed. Whether the courts will protect only that material whichis found in one's home, or whether the businessman who carries anotherwise obscene film or book home in his briefcase or the individualwho carries such matter in his automobile will also be protected areundecided questions. Future cases may turn on whether the word "home"means only one's abode or whether it also means one's car or office.This writer believes that the Court meant to protect all private pos-session of what may otherwise be obscene material from governmentalinquiry and suppression. It is the individual's freedom to read, enjoy,and think what he pleases that the Court is seeking to shelter, andthis freedom will not be narrowed merely because the individual isreading a book in his car or viewing a movie in his office rather thanin his home. The Court said that Georgia sought to control its citizens'thoughts and to protect their minds from the alleged adverse effectsof exposure to obscenity.20 But the Court answered:[W]e are not certain that this argument amounts to anythingmore than the assertion -that the State has the right to controlthe moral content of a person's thoughts. To some this maybe a noble purpose, but it is wholly inconsistent with the phi-losophy of the First Amendment.2 '"If the First Amendment means anything, it means that a Statehas no business telling a man, sitting alone in his house, what books hemay read or what films he may watch."22SHERRYLL M. DUNAJ19. State v. Strutt, 4 Conn. 501, 236 A.2d 357 (1967); State v. Von Cleef, 102 N.J.Super. 102, 245 A.2d 495 (1968); People v. Marzana, 31 App. Div. 2d 52, 295 N.Y.S.2d228 (Sup. Ct. 1968) ; People v. Russek, 49 Misc. 2d 484, 267 N.Y.S.2d 848 (Dist. Ct. 1966) ;People v. Roberts, 2 Misc. 2d 668, 154 N.Y.S.2d 201 (Utica City Ct. 1956) ; State v. Wetzel,173 Ohio St. 16, 179 N.E.2d 773 (1962).The California Supreme Court, when presented with the same issue as that in thepresent case, accurately presaged the holding of Stanley in In re Klor, 64 Cal. 2d 816, 415P.2d 791, 51 Cal. Rptr. 903 (1966). The appellant movie-maker was convicted of possessingobscene films, which he contended he did not intend to distribute in their unedited form.The California Court said:Without the requirement that the defendant be shown to have prepared thematerial with the intent to distribute it in its obscene form, the statute would applyto matter produced solely for the personal enjoyment of the creator .. . .Such astatute would approach an interdiction of individual expression in violation of theFirst and Fourteenth Amendments. [Citing Griswold v. Connecticut.]Id. at 819, 415 P.2d at 794, 51 Cal. Rptr. at 906.20. The Court noted that although Georgia asserted that exposure to obscenity couldlead to deviant sexual behavior, "there appears to be little empirical basis for that assertion."Stanley v. Georgia, 89 S. Ct. at 1249.21. Id. at 1248.22. Id. at 1248.1969]

Constitutional Law -- Private Possession of Obscene Films Where There is no Intent to Sell, Circulate, or Distribute

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Constitutional Law -- Private Possession of Obscene Films Where There is no Intent to Sell, Circulate, or Distribute

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