People v. Ridens

MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Frank C. Ridens and Marilyn Keckler, a/k/a Norma Keckler, appealed to this court from judgments of the circuit court of Winnebago County entered upon their being found guilty of obscenity (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20). Defendant Larry Walker appealed from the judgment of the circuit court of Rock Island County which found him guilty of violating the obscenity ordinance of the City of Moline. The cases were consolidated for argument and opinion, and the judgments were affirmed. (People v. Ridens, 51 Ill.2d 410.) The Supreme Court of the United States granted certiorari, vacated the judgment of this court, and remanded the cause “for further consideration in light of Miller v. California, [413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607] ***.” (413 U.S. 912, 37 L. Ed. 2d 1030, 93 S. Ct. 3046.) On remand we ordered the filing of supplemental briefs “limited exclusively to the constitutionality of Ill. Rev. Stat. (1969), Ch. 38, par. 11 — 20, in light of the judgment of the United States Supreme Court in Ridens, et al. v. Illinois, 413 U.S. 912, 93 S. Ct. 3046 (1973), and whether or not the appellants’ convictions should be affirmed after the remand.” The facts are adequately set forth in our earlier opinion and will not be restated here.

In two separate complaints, defendant Ridens, owner of two stores in Rockford, and defendant Keckler, his employee, were charged under the obscenity statute with the sale of allegedly obscene magazines. The circuit court found defendants guilty, fined them, and imposed jail sentences.

Defendant Walker, in two separate complaints, was charged under the Moline obscenity ordinance with the sale of obscene magazines. In a bench trial he was found guilty and fined.

Defendants contend first that the obscenity statute and the Moline obscenity ordinance are overbroad and vague and violate defendants’ rights under the first and fourteenth amendments to the Constitution of the United States. The People contend that, as “heretofore authoritatively construed,” the obscenity statute, as required by Miller v. California, “defines with particularity the kinds of specific sexual conduct which can be found obscene.” The People argue alternatively that if this court finds that the obscenity statute “has not been previously construed to incorporate the Miller standard, the Court can and should now” so construe it.

In Miller, the Supreme Court said:

“*** State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, [390 U.S. 676,] at 682-685, [20 L. Ed. 2d 225, 230-2, 88 S. Ct. 1298, 1302-5 (1968).] 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.

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, supra, [408 U.S. 229,] at 230, [33 L. Ed. 2d 312, 315, 92 S. Ct. 2245, 2246 (1972),] quoting Roth v. United States, supra, [354 U.S. 476,] at 489, [1 L. Ed. 2d 1498, 1509, 77 S. Ct. 1304, 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 emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller v. California, 413 U.S. 15, 23-5, 37 L. Ed. 2d 419, 430-1, 93 S. Ct. 2607, 2614-15.

In pertinent part the Illinois obscenity statute provides :

“(a) Elements of the Offense.

A person commits 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 writing, picture, record or other representation or embodiment of the obscene; or * * *

(3) Publishes, exhibits or otherwise makes available anything obscene; 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 material represented or held out by him to be obscene, whether or not it is obscene.

(b) Obscene Defined.

A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.

(c) Interpretation of Evidence.

Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience.

Where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that material is being commercially exploited for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance.

In any prosecution for an offense under this Section evidence shall be admissible to show:

(1) The character of the audience for which the material was designed or to which it was directed;

(2) What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have on the behavior of such people;

(3) The artistic, literary, scientific, educational or other merits of the material, or absence thereof;

(4) The degree, if any, of public acceptance of the material in this State;

(5) Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;

(6) Purpose of the author, creator, publisher or disseminator.”

The Moline ordinance in pertinent part provides that a person commits obscenity when within the City of Moline he sells, offers or attempts to sell, distributes, gives away, offers to or attempts to give away prints or publishes an obscene book, magazine, pamphlet, paper, photograph, drawing, motion picture, film, phonograph record, film strip or slide.

“Section 2. A thing is obscene for purposes of this Ordinance when to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest; that is,

a) That the dominant theme of the material taken as a whole appeals to a prurient interest in sex, and

b) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of the sexual nature, and

c) The material is utterly without redeeming social value.”

“It is a basic principle of due process that ‘An enactment is void for vagueness if its prohibitions are not clearly defined.’ ” Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298.

“The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by this Court. As was said in United States v. Harriss, 347 U.S. 612, 617, [98 L. Ed. 989, 996, 74 S. Ct. 808, 812]

‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’

Thus we have struck down a state criminal statute under the Due Process Clause where it was not ‘sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ Connally v. General Const. Co., 269 U.S. 385, 391, [70 L. Ed. 322, 328, 46 S. Ct. 126, 127.] We have recognized in such cases that ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law,’ ibid., and that ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ Lanzetta v. New Jersey, 306 U.S. 451, 453, [83 L. Ed. 888, 890, 59 S. Ct. 618, 619].” Bouie v. City of Columbia, 378 U.S. 347, 350-1, 12 L. Ed. 2d 894, 898, 84 S. Ct. 1697, 1701.

A statute which may be lacking in neither clarity nor precision is void for overbreadth if it offends the constitutional principle “that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. See [NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-464, 2 L. Ed. 2d 1488, 1500-1501, 78 S. Ct. 1163, 1172-1173.] ‘*** [T] he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.’ Cantwell v. Connecticut, 310 U.S. 296, 304, [84 L. Ed. 1213, 1218, 60 S. Ct. 900, 903.] ‘*** [E] ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. ’ ” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307-308, 12 L. Ed. 2d 325, 338, 84 S. Ct. 1302, 1314.

Against this background we must determine whether the obscenity statute withstands the charges of vagueness and overbreadth. We consider first whether the statute as written or “authoritatively construed” defines, with sufficient specificity, the “community” by whose contemporary standards the allegedly obscene material must be tested to determine whether “the average person applying those standards, “would find that the work taken as a whole appeals to the prurient interest.” It is clear that the States are free to choose to define the “community” in precise geographic terms (Jenkins v. Georgia, 418 U.S. 153, 157, 41 L. Ed. 2d 642, 648, 94 S. Ct. 2750, 2753), and this Illinois has done. In People v. Butler, 49 Ill.2d 435, 438, we held that “the statute [section 11 — 20 of the Criminal Code of 1961] contemplates the application of a statewide standard ***.”

We consider next whether the obscenity statute is impermissibly vague. Although not phrased in the exact language of Miller, the basic essential element of the statutory offense is that the material “appeal to the prurient interest.” The statute specifically includes within the scope of “the prurient interest” a “shameful or morbid interest in nudity, sex or excretion.”

A statute or ordinance designed to regulate many types of activities must frequently be couched in general terms. In rejecting the contention that the “anti-noise” ordinance of the city of Rockford was impermissibly vague and upholding its validity, the United States Supreme Court said: “Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by ‘flexibility and reasonable breadth, rather than meticulous specificity,’ Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (CA8 1969) (Blackmun, J.), cert. denied, 398 U.S. 965, [26 L. Ed. 2d 548, 90 S. Ct. 2169] (1970), but we think it is clear what the ordinance as a whole prohibits.” Grayned v. City of Rockford, 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-229, 92 S. Ct. 2294, 2300.

In People v. Raby, 40 Ill.2d 392, in rejecting the contention that sections 26 — 1(a) and 31 — 1 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 26 — 1(a) and 31 — 1) were invalid by reason of vagueness and overbreadth, this court said at page 396: “It is true that section 26 — 1(a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” Considered in the light of Grayned and Raby we do not find the statutory definition of obscenity to be unconstitutionally vague.

We consider next defendants’ contention that the statute is overly broad. In order that a statute be held overbroad the overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” (Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908, 2918.) We do not find section 11 — 20 to be overbroad.

What we have said concerning the alleged vagueness and overbreadth of the obscenity statute is applicable to the Moline obscenity ordinance, and we find it to be neither impermissibly vague nor overbroad.

We have previously construed both section 11 — 20 of the Criminal Code (People v. Ridens, 51 Ill.2d 410) and the Moline obscenity ordinance (City of Moline v. Walker, 49 Ill.2d 392) to provide the same tests of obscenity as are found in Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304. Both the statute and ordinance, as written, are framed in the terms of Memoirs v. Massachusetts, 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975, in which the Supreme Court said: “We defined obscenity in Roth in the following terms: 1 [W] hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U.S., at 489, [1 L. Ed. 2d at 1509, 77 S. Ct. at 1311]. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” (383 U.S. 413, 418, 16 L. Ed. 2d 1, 5, 86 S. Ct. 975, 977.) We need not and do not attempt to analyze the changes from the three-part Roth-Memoirs standard effected by the enunciation of the three-part Miller standard. It suffices to, and we now construe section 11 — 20 of the Criminal Code and the Moline obscenity ordinance to incorporate parts (a) and (b) of the Miller standards.

Part (c) of the Miller standard however presents a situation different from parts (a) and (b). As stated above, section 11 — 20 and the ordinance are drawn to include the three-part test enunciated in Memoirs, part (c) of which provides that to be obscene, the material must be “utterly without redeeming social value.” Part (c) of neither the Memoirs nor the Miller test requires definition, and, indeed, defendants do not contend that these provisions of the statute or ordinance present any problem. Clearly the test of Miller is more restrictive than that of Memoirs and subjects to regulation matters which under Memoirs could not be held to be obscene. The statute and ordinance, however, are to be interpreted in the light of the language which they contain, and insofar as this “basic guideline” of Miller is concerned, the test of obscenity is that provided in the statute and ordinance.

In Jacobellis v. Ohio, 378 U.S. 184, 190, 12 L. Ed. 2d 793, 799, 84 S. Ct. 1676, 1679, it was stated: “[W]e reaffirm the principle that, in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” (See also Cox v. Louisiana, 379 U.S. 536, 545, 13 L. Ed. 2d 471. 478-479. 85 S. Ct. 453, 459.) In Jenkins v. Georgia, 418 U.S. 153, 163-64, 41 L. Ed. 2d 642, 652, 94 S. Ct. 2750, 2756, in a separate opinion, Mr. Justice Brennan said: “After the Court’s decision today, there can be no doubt that Miller requires appellate courts — including this Court — to review independently the constitutional fact of obscenity. Moreover, the Court’s task is not limited to reviewing a jury finding under part (c) of the Miller test that ‘the work, taken as a whole, lack[ed] serious literary, artistic, political, or scientific value.’ 413 U.S., at 24. Miller also requires independent review of a jury’s determination under part (b) of the Miller test that ‘the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.’ ”

It is, of course, unfortunate, that the requisite “making of an independent constitutional judgment” in cases involving obscenity requires so great an expenditure of judicial time. The situation is, however, that except that the contending forces appear to become so much more emotional concerning the issues, obscenity cases present precisely the same problems relating to rights under the First Amendment as do the cases involving peace disturbance and disorderly conduct. In view of the inability of the appellate tribunals to clearly delineate the principles applicable to these latter types of cases it appears that perhaps we bemoan too greatly our inability to more clearly define the permissible scope of regulation of obscenity.

Having determined that the statute is constitutional, we consider next defendants’ contention that even if this court were “to authoritatively construe the statute within the meaning of Miller” the construction could only be applied prospectively and that “traditional notions of due process would prohibit a retroactive application” of that construction.

Our holding that section 11 — 20 of the Criminal Code and the Moline obscenity ordinance are construed to incorporate parts (a) and (b) of the Miller rather than the Memoirs standards may not be applied retroactively if to do so renders their construction less favorable to defendants. (People v. Patton, 57 Ill.2d 43, 48.) In our opinion the changes do not have that effect, and we find no impediment to the retroactive application of the statute and ordinance as now construed.

We turn now to the question whether under the statute and ordinance, as now construed, the magazines are obscene. In our earlier opinion (51 Ill.2d 410, 417) we described the photographs contained in the magazines and we need not do so again. We hold that the magazines are obscene, that their sale violated the statute and ordinance, and the judgments are affirmed.

Judgments affirmed.