Salt Lake City v. Piepenburg , 1977 Utah LEXIS 1281 ( 1977 )

CROCKETT, Justice

(concurring in result):

I concur in the holding that the ordinance is sufficiently clear and specific that persons of ordinary intelligence, who desire to know what the law is, and to abide by it, would have no difficulty in understanding what is prohibited.¹ In doing so I add the following observations:

As indicated in our recent case of the-same nature, State v. Phillips,² our own State Constitution, Article I, Section 1, has a better and broader statement concerning freedom of thought and expression than the First Amendment to the United States Constitution. Our section provides that:

All men have the inherent and inalienable right ... to communicate freely their thoughts and opinions .

Notwithstanding that desirable and salutary assurance, freedom of expression, just like all other freedoms, is subject to reasonable limitations where the protection of the public health, safety or morals so requires. Accordingly, even the most “liberal” and uninhibited concede that obscenity and pornography are subject to control by law.³

Whatever else may be said about any lack of certainty or other deficiency in the ordinance’s defining of pornography, this defendant is in no position to complain thereof. There can be no question whatsoever but that any fair minded person with common sense would know and admit that the material published was obscene and pornographic. The mere fact that in the abstract the ordinance might adversely affect someone else in different circumstances does not redound to defendant’s advantage.⁴

1 . See State v. Packard, 122 Utah 369, 250 P.2d 561.

2 . Utah, 540 P.2d 936; if it is the desire of the dissent to characterize this Phillips case, in fairness it should not be done by looking at one facet thereof. The case dealt with pornography. In regard to whatever application the First Amendment of the United States Constitution has to that issue, this writer stated, “What the claimed ‘right’ to spew the filth of pornographic and obscene materials on one’s fellow man has to do with political and religious liberty is difficult to perceive.” And further stated: “. . . we have no desire to disparage the idea that every person should have the highest possible degree of freedom of thought, expression and action consistent with respecting similar rights in other individuals and the welfare of society generally.” 540 P.2d at 939.

3 . Ibid.: and see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 and cases therein cited.

4 . See 16 Am.Jur.2d, Const.Law, Sec. 119.