State v. Hunt , 1983 Tenn. Crim. App. LEXIS 417 ( 1983 )

DAUGHTREY, Judge,

concurring.

As the majority opinion notes, the jury in this case implicitly found that three of the four films submitted were legally obscene but that the fourth, entitled “Breakfast in Bed,” was not. After reviewing all four films, I can only conclude that this last film is equally as pornographic as the other three, and that the jury’s clearly inconsistent verdicts, while not illegal under state law, are nothing short of serendipitous.

The obvious caprice involved in the process of applying “community standards” to determine which pornographic items violate state regulations and which do not suggests to me an excellent reason for interpreting Article 1, Section 19 of the Tennessee Constitution to protect from censorship materials such as those involved in this case (especially where the record shows that no children have been solicited or exploited in connection with the defendants’ activities, or in any of the materials which are the focus of this prosecution). Were the state constitutional question open for me to decide, I would so hold.

But the question is not an open one. Our Supreme Court specifically addressed this issue in Leech v. American Booksellers Ass’n., Inc., 582 S.W.2d 738 (Tenn.1979), and decided to adhere to the federal constitutional standards adopted by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), despite the court’s recognition that it had the authority to “interpret Article I, § 19 as granting absolute protection to speech and press and forbid any and all regulation of pornography in Tennessee.” Leech v. American Booksellers Ass’n., Inc., supra, at 745.

With the state constitutional question thus foreclosed, I conclude that I have no recourse but to concur in the result reached by the majority in this case.