State v. Henry

YOUNG, J.

Defendant appeals his conviction for dissemination of obscene material.¹ ORS 167.087(1). He was indicted, inter alia, for dissemination of magazines entitled “Bronco Buster” and “3-Way Cum.” He demurred to the indictment on the ground that the facts stated do not constitute an offense, because ORS 167.087 is unconstitutional. He stipulated that he had sold the magazines in question. The sole issue for the jury was whether the magazines were obscene within the definition of ORS 167.087(2). He was found guilty only in connection with the magazine “3-Way Cum.” On appeal he argues that the court erred in overruling the demurrer.²

Defendant argues that ORS 167.087 is unconstitutionally “vague” and “overbroad” and violates his right to freedom of expression under Article I, section 8, of the Oregon Constitution. “Vagueness” is a catchword for a number of possible constitutional violations. For example, in State v. Hodges, 254 Or 21, 27, 457 P2d 491 (1969), the court explained:

“A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws.”³

A vague statute also violates Article I, section 20, of the Oregon Constitution, in that it invites “standardless and unequal application of penal laws.”⁴ State v. Graves, 299 Or 189, 197, 700 P2d 244 (1985); State v. Robertson, 293 Or 402, 408, 649 P2d 569 (1982). Defendant’s argument here is that the definition of obscenity, ORS 167.087(2), is so subjective that it fails to give potential defendants notice of its scope and allows the fact finder to decide, after the fact and according to its own sensibilities, whether particular material is obscene.

A claim of “overbreadth” asserts that the terms of the statute exceed constitutional boundaries by purporting to reach conduct protected by constitutional guarantees. State v. Robertson, supra, 293 Or at 410. “Overbreadth” in this context refers to a violation of Article I, section 8, which provides in part:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever * * *.”

A statute will be struck down as unconstitutionally overbroad if its terms could hypothetically prohibit protected speech even if, in the instance before the court, the defendant’s conduct could be constitutionally prohibited by a more narrowly drawn statute. See State v. Robertson, supra; State v. Woodcock, 75 Or App 659, 706 P2d 1012 (1985), rev den 300 Or 506 (1986).

Finally, defendant contends that ORS 167.087 is unconstitutional, because Article I, section 8, flatly bans the enactment of legislation directed to the substance of communication. This contention is distinct from an overbreadth challenge, because overbreadth analysis assumes that, although in the particular instance some regulation of the subject might be constitutional, the means reach too far. Defendant’s argument here is that the subject of obscenity is wholly withdrawn from legislative purview.⁵

Vagueness and overbreadth are distinct constitutional challenges. However, the constitutional principles of freedom of expression and certainty of penal laws interact in that a statutory prohibition of “communication” is particularly vulnerable to constitutional attack for vagueness. State v. Blair, 287 Or 519, 523, 601 P2d 766 (1979). We conclude that the statutory definition of obscenity, ORS 167.087(2), is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution.⁶

ORS 167.087 provides in part:

“(1) A person commits the crime of disseminating obscene material if he knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.

“(2) As used in subsection (1) of this section, matter is obscene if:

“(a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;

“(b) The average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex; and

“(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value.”

The definition of “obscenity” in subsection (2) was first enunciated in Miller v. California, 413 US 15, 24, 93 S Ct 2607, 37 L Ed 2d 419 (1973),⁷ and was later applied to consensual adult pornography in Paris Adult Theatre I v. Slaton, 413 US 49, 93 S Ct 2628, 37 L Ed 2d 446 (1973). The court in Miller, determined that the “specific prerequisites [of the Miller test] will provide fair notice to a dealer in such material that his public and commercial activities may bring prosecution.” Justice Brennan, dissenting in Paris Adult Theatre I, explained:

“[A]fter 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as ‘prurient interest,’ ‘patent offensiveness,’ ‘serious literary value’ and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncracies of the person defining them. Although we have assumed that obscenity does exist and that we ‘know it when [we] see it,’ we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish between protected and unprotected speech.” 413 US at 84. (Citations omitted.)

Despite Justice Brennan’s views, the Miller formula embodied in ORS 167.087 meets the requirement of the First and Fourteenth amendments to the United States Constitution. Our obligation, however, is to consider the statute first under the Oregon Constitution. State v. Robertson, supra. In discussing defendant’s challenge to ORS 167.087 under the state constitution, we find it useful to review the Oregon obscenity cases.

In State v. Jackson, 224 Or 337, 356 P2d 495 (1960), the court reversed the trial court’s ruling that former ORS 167.150(1)⁸ was unconstitutionally vague under the state constitution.⁹ The majority first recognized “[t]he impossibility of finding any popularly accepted definition for the word ‘obscene’ * * *." 224 Or at 355. The court then adopted the Model Penal Code definition of obscenity for application on remand:

“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., 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.” 224 Or at 360.

The court noted that the Model Penal Code definition also satisfied the standard adopted by the United States Supreme Court in Roth v. United States, 354 US 476, 487 n 20, 77 S Ct 1304, 1 L Ed 2d 1498 (1957). 224 Or at 361. Judge O’Connell, dissenting (joined by Judges Warner and Sloan), agreed that former ORS 167.150, as interpreted by the majority, satisfied the First and Fourteenth Amendments to the United States Constitution. 224 Or at 365, citing Roth v. United States, supra. However, unlike the majority, the dissenters concluded that the United States Supreme Court opinion in Roth was not a useful guide in determining the constitutionality of the statute under the state constitution, because the Roth opinion “evades the very problem which must be met in dealing with the constitutionality of this type of legislation.” 224 Or at 366. The dissent stated:

“The court held, ‘obscenity is not within the area of constitutionally protected speech or press.’ If, as Justice Harlan points out in his concurring and dissenting opinion, we could isolate ‘’’obscenity” as a particular genus of “speech and press” which is as distinct, recognizable and classifiable as poison ivy is among other plants,’ there would be no difficulty in separating obscene material from constitutionally protected expressions and in sustaining a statute which suppresses ‘obscenity.’ ” 224 Or at 366. (Citations omitted.)

The dissent argued:

“[Granting that the legislature is entitled to restrict freedom of expression when it decides that competing social values predominate, the restraint is valid only if there is some ascertainable criteria [sic] by which the courts can, in specific cases, determine whether the statute is applicable.” 224 Or at 377.

The dissent would have held that the breadth and vagueness of the Model Penal Code definition of obscenity did not meet the higher standard of definiteness required of a criminal law which extends to expression.

State v. Childs, 252 Or 91, 447 P2d 304 (1968), cert den 394 US 931 (1969), involved a constitutional challenge to former ORS 167.151. The statute, enacted after State v. Jackson, supra, also included the Model Penal Code/Roth definition of obscenity. The court admitted that “the concept of obscenity does not lend itself to precise mathematical definition” but “reject[ed] the contention that obscenity is not capable of a sufficiently precise definition.” State v. Childs, supra, 252 Or at 100. The court, rejecting defendant’s vagueness claim, relied on Roth v. United States, supra, and did not independently consider a vagueness challenge under the state constitution.

In State v. Liles, 22 Or App 132, 537 P2d 1182, rev den (1975), cert den 425 US 963 (1976), the defendant challenged ORS 167.087 on the grounds of vagueness and overbreadth under the First and Fourteenth Amendments. ORS 167.087 was enacted to conform to the First and Fourteenth Amendment standards set forth in Miller v. California, supra. Therefore, the question under the federal constitution was whether the state legislature had succeeded in enacting the Miller formula. We determined that the statute was not unconstitutionally vague, because it “follows the guidelines of Miller v. California * * * as to what may be defined and regulated as ‘obscenity.’ ” 22 Or App at 140.

The issue of vagueness under the federal constitution was again raised in Film Follies, Inc. v. Haas, 22 Or App 365, 539 P2d 669, rev den (1975), appeal dismissed 426 US 913 (1976). The argument was summarily rejected on the basis of State v. Liles, supra. The last time we addressed the constitutionality of ORS 167.087 was in State v. Tidyman, 30 Or App 537, 568 P2d 666, rev den (1977). In that case, Judge Tanzer wrote:

“Finally, defendant contends that Oregon’s obscenity statute, ORS 167.087, is unconstitutionally vague and overbroad. This writer, not joined by his colleagues, would concur if controlling law were not settled otherwise. We therefore adhere to our prior decision to the contrary. Film Follies, Inc. v. Haas * * *." 30 Or App at 554.

The Oregon Supreme Court has consistently held that a particular type of expression labeled “obscenity” may be prohibited under Article I, section 8. However, as evidenced by the dissent in State v. Jackson, supra, the members of the court have not always agreed that a particular legislative or judicial definition was capable of separating “obscene” expression from protected expression. The court has not considered the current definition of obscenity based on Miller v. California, supra, and codified in ORS 167.087(2). See State v. Liles, supra; Film Follies, Inc. v. Haas, supra; and State v. Tidyman, supra. We turn to defendant’s vagueness challenge under the Oregon Constitution and discuss federal cases only to aid in that analysis.

In Miller v. California, supra, the United States Supreme Court premises its opinion on its oft-repeated view that “obscenity” is not “speech,” Roth v. United States, supra, 354 US at 485, and, therefore, is not entitled to protection under the First and Fourteenth Amendments to the United States Constitution. The Oregon legislature, in adopting the Miller definition in ORS 167.087(2), apparently made the same assumption with respect to Article I, section 8, of the Oregon constitution. The parties offer competing contentions in their briefs as to that assumption, raising the question whether the right to “speak, write, or print freely on any subject whatever” includes the right to disseminate obscenity.

The question is one we are not required to answer in this case because, even assuming that some abstraction called “obscenity” is not protected speech under Article I, section 8, the statute we consider here does not satisfactorily draw a line between such material and other forms of communication.¹⁰ ORS 167.087(1) proscribes “disseminating obscene material.” The words “disseminating” and “material” are particularly described in terms of specific acts and objects. The word “obscene” is defined by ORS 167.087(2). To be obscene, material must depict or describe “sadomasochistic abuse or sexual conduct.” ORS 167.087(2)(a). The claim in this case is that the magazine in question depicts “sexual conduct.” ORS 167.060(10) provides:

“ ‘Sexual conduct’ means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”

In State v. House, 66 Or App 953, 957, 676 P2d 892 (1984), aff’d 299 Or 78, 698 P2d 951 (1985), we construed the language “in an act of apparent sexual stimulation or gratification” to mean “any touching of the described areas that a reasonable person would perceive as sexually stimulating or gratifying.” So interpreted, we determined that the definition of “sexual conduct” is sufficiently clear to withstand a vagueness challenge.¹¹

The difficulty, however, is not in separating depictions of sexual conduct from depictions of nonsexual conduct. The difficulty is in separating “obscene” depictions of sexual conduct from depictions that are not “obscene.”¹² Because a depiction or description of sexual conduct is expression, any proscription must be drawn with particular care and precision to satisfy Article I, section 8. State v. Blair, supra. The only tool which a judge and jury have to distinguish the obscene sexual expression from protected sexual expression is the three-part Miller test embodied in ORS 167.087(2).

First, the material must be “patently offensive.” ORS 167.087(2)(a). “Patent” means “evident” or “obvious.” Webster’s Third New International Dictionary, 1654 (1976). “Offensive” “describes what is disagreeable or nauseating or painful because of outrage to taste and sensibilities * * *.” Webster’s Third New International Dictionary, 1566 (1976). As a threshold matter, under those definitions, the jury must find the depiction of sexual conduct to be obviously outrageous to the average person’s sensibilities.

■ Second, the jury must determine that “[t]he average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex.” ORS 167.087(2)(b). Prurient means a “shameful or morbid” interest in sex. State v. Jackson, supra, 224 Or at 363. Jurors are required to apply contemporary state standards of the average person and to avoid determining prurience,based on their own personal opinions of the propriety of sexual expression. A “juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage [or state] from which he comes,” Hamling v. United States, 418 US 87, 104, 94 S Ct 2887, 41 L Ed 2d 590 (1974), and may base the determination of prurience on the juror’s own “common sense and innate sensibilities.” State v. Tidyman, supra, 30 Or App at 551. If the jury determines that the material depicts sexual conduct in a manner that is patently offensive and that it appeals to a prurient interest in sex, then under ORS 167.087(2) (c) the jury must determine whether the material has “serious literary, artistic, political or scientific value.”

Whether a particular work is obscene within the three-part definition of ORS 167.087 is a question of fact. Miller v. California, supra; State v. Tidyman, supra. In making the factual determination, the jury is, in essence, making a constitutional distinction between protected and unprotected sexual expression. See Kalven, “The Metaphysics of the Law of Obscenity,” 1960 S Ct Rev 1, 20-21. When the material depicts “sexual conduct,” the critical distinction between protected and criminal expression must be made on the basis of offensiveness, appeal to prurient interest and lack of serious literary, artistic, political and scientific value. Each pf those determinations is necessarily subjective. See Kassner, “Obscenity Leads to Perversion,” 20 NYLF 551 (1975); Hardy, “Miller v. California and Paris Adult Theatre I v. Slaton: The Obscenity Doctrine Reformulated,” 6 Colum H R L Rev 219 (1974); Comment, “Community Standards, Class Actions, and Obscenity Under Miller v. California,” 88 Harv L Rev 1338 (1975); Comment, “New Prosecutorial Techniques and Continued Judicial Vagueness: An Argument for Abandoning Obscenity as a Legal Concept,” 21 UCLA L Rev 181 (1973); Comment, “In Quest of a ‘Decent Society’: Obscenity and the Burger Court,” 49 Wash L Rev 89 (1973).

The United States Supreme Court, by requiring that prurient appeal be determined by reference to “contemporary community standards,” intended those standards to vary according to the location and the sophistication of the viewing audience. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” Miller v. California, supra, 413 US at 32. (Footnote omitted.) The Oregon statute, by referring to contemporary state standards, provides a geographically uniform standard. Material that appeals to the “average person’s” prurient interest would not vary, at least theoretically, from Baker to Portland, Klamath Falls to Eugene. However, the reference to “contemporary” state standards anticipates fluctuations over time. For example, the type of sexually oriented materials published and considered acceptable in the 1970’s may now, in what may be a different social atmosphere, be determined unacceptable and obscene.

The Miller formula was intended to restrict only “hard core” pornography. Miller v. California, supra, 413 US at 27. In determining that “obscenity,” as limited to hard core pornography, may be constitutionally proscribed, the United States Supreme Court made two vital assumptions. The first is that hard core pornography is “self identifying.” See Comment; “In Quest of a ‘Decent Society’: Obscenity and the Burger Court,” supra, 49 Wash L Rev at 107. In other words, judges and jurors are entitled to conclude that they “know it when [they] see it.” See Jacobellis v. United States, 378 US 184, 197, 84 S Ct 1676, 12 L Ed 2d 793 (1964) (Stewart, J., concurring). The second assumption is that some uncertainty on the part of potential defendants as to whether particular sexually explicit materials are legally obscene is constitutionally acceptable.

“Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.” Hamling v. United States, supra, 418 US at 124; quoting, United States v. Wurzbach, 280 US 396, 399, 50 S Ct 167, 74 L Ed 2d 508 (1930).

The Hamling principle has its Oregon constitutional parallel. In discussing the constitutional principles prohibiting vague penal laws, the Oregon Supreme Court has noted:

“A criminal statute need not define an offense with such precision that a person in every case can determine in advance that a specific conduct will be within the statute’s reach.” State v. Graves, supra, 299 Or at 195.

However, Graves did not arise within the strict limitations of Article I, section 8. Rather, the statute challenged as vague in Graves defined “burglar tool,” the use of which enhances the penalty for burglary. ORS 164.225(1)(a). To withstand constitutional scrutiny under Article I, section 8, the Miller definition of obscenity, as enacted in ORS 167.087(2), is required to do more than simply separate one degree of criminal conduct from another (as in Graves) or to separate conduct the legislature chooses to prohibit from conduct which it does not; it must separate prohibited expression from expression that cannot be prohibited.

Because ORS 167.087(2) must be used by judges, juries and potential defendants to assess the criminality of particular conduct, we hold that its definitions are not sufficiently precise to determine whether particular sexually explicit material is legally obscene. It is not acceptable, as a matter of state constitutional law, that the precise course of the line dividing obscene expression from protected expression be uncertain and that a person who chooses to disseminate sexually explicit materials must bear the risk of that uncertainty. The constitutional right to communicate freely on “any subject whatever” guaranteed by Article I, section 8, requires more than the statute provides by way of guidance. A person who trades in sexually explicit materials cannot discern that his wares are legally obscene under the statute; a trial judge is left with no legal standard to apply; and jurors are required to determine what is or is not obscene on the basis of their personal ideas of contemporary state standards. ORS 167.087(2) is unconstitutional. The demurrer should have been sustained.

In case no. 31300, conviction reversed; in case no. 31301, conviction reversed.

1 Under a separate indictment (case no. 31301), defendant was also convicted of “possession of obscene material with intent to disseminate” involving a magazine entitled “Crystal Dawn.” Defendant’s demurrer on constitutional grounds was denied. The state concedes that that conviction must be reversed, because the magazine was seized pursuant to an invalid search warrant. However, we reverse the conviction in that case for the reasons stated in this opinion.

2 Defendant also argues that the jury verdict is fatally inconsistent, that the court erred in precluding comparison evidence, that this court has an independent obligation to review the magazine in question and that it is not obscene as a matter of law. Because we determine that ORS 167.087 violates the state constitution, we do not reach these issues.

3 Oregon Constitution, Article I, section 21, provides in part:

“No ex post facto law * * * shall ever be passed.”

4 Article I, section 20, provides:

“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

Application of a vague statute may violate the defendant’s right to fair notice guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The due process requirement of fair notice to potential defendants of a criminal statute’s scope and reach is embodied in the commitment of the criminal code set forth in ORS 161.025(l)(c) to “give fair warning of the nature of the conduct declared to constitute an offense.” State v. Robertson, supra, 293 Or at 409.

5 Defendant cites State v. Robertson, supra, for the proposition that Article I, section 8, forbids the legislature from enacting an obscenity proscription, because it is necessarily directed to the content of speech rather than an unlawful effect. The state cites Robertson for the proposition that “obscenity” is a historical exception to Article I, section 8. It is unnecessary, in this instance, to determine whether Article I, section 8, flatly bans the enactment of any obscenity proscription, because we determine that ORS 167.087(2), as written, violates Article I, sections 20 and 21. See In re Lasswell, 296 Or 121, 673 P2d 855 (1983); see also State v. Moyle, 299 Or 691, 705 P2d 740 (1985).

6 Defendant demurred to the indictment before trial on the ground that ORS 167.087 is “vague” and “overbroad.” He again demurred to the indictment after verdict, arguing that ORS 167.087 violates Article I, section 8. The focus of defendant’s argument on "appeal is that ORS 167.087 violates Article I, section 8, under the analysis developed by the Supreme Court in State v. Robertson, supra. Defendant also argues on appeal that the definition of obscenity in ORS 167.087(2) “has led to a great deal of uncertainty,” because “the standards are largely indefinite, providing inadequate warning to potential violaters. Vague laws allow arbitrary enforcement. There is a high risk of subjectivity in jury determinations on offensiveness, contemporary community standards and social value[.] * * * [Tjhe obscenity standards create a community of twelve seated in the box and permit their standards to largely determine ex post facto whether material is obscene.” Despite the comments of the dissent to the contrary, we conclude that the vagueness issue has been adequately raised below and on appeal.

7 Miller v. California, supra, requires that the average person applying “contemporary community standards” find that the work appeals to prurient interest. In Hamling v. United States, 418 US 87, 94 S Ct 2887, 41 L Ed 2d 590 (1974), the Supreme Court held that “community standards” need not be national standards to pass constitutional muster. “Contemporary community standards” in ORS 167.087(2)(b) refers to a statewide community. See State v. Liles, supra, 22 Or App at 139.

8 Former ORS 167.150(1) (repealed by Or Laws 1961, ch 579, § 2) imposed misdemeanor punishment on any person who:

“(1) Imports, designs, copies, draws, photographs, prepares, publishes, sells, lends, gives away, distributes, shows or exhibits or has in his possession with intent to publish, sell, lend, give away, distribute, show or exhibit any article or instrument of indecent or immoral use, or any obscene or indecent book, paper, writing, printed matter, picture, drawing, photograph or engraving.”

9 The trial court concluded that former ORS 167.150 was invalid for three reasons:

“(1) It imposes prior restraints upon publications contrary to the Oregon Constitution, Article I, section 8;

“(2) It prohibits publication of crime news and deeds of lust and bloodshed thereby invading freedom of speech;

“(3) The word ‘obscene’ as used by the act, is unconstitutionally vague, measured by the requirements of the Oregon Constitution.” State v. Jackson, supra, 224 Or at 342.

For a history of Oregon obscenity legislation before the enactment of ORS 167.087, see Meyer and Seifer, “Censorship in Oregon: New Developments in an Old Enterprise,” 51 Or L Rev 537 (1972).

10 As the dissent points out at length, other state courts have accepted the Miller standards, often without engaging in a careful analysis of them. Some of those cases have more or less persuasive dissents, as does Miller itself. See, e.g., Bloom v. Municipal Court, 16 Cal 3d 71, 86, 127 Cal Rptr 317, 545 P2d 229 (1976) (Tobriner, J., dissenting); City of Portland v. Jacobsky, 496 A2d 646, 650 (Me 1985) (Scolnik, J., concurring and dissenting). This is one of those cases in which we find the arguments of dissenters and of commentators more helpful in determining the meaning of the Oregon constitution than are majority opinions from other jurisdictions. See State v. Soriano, 68 Or App 642, 645, 684 P2d 1220, opinion adopted, 298 Or 392, 693 P2d 26 (1984).

11 In State v. House, supra, we found that ORS 167.062, which proscribed “sexual conduct in a live public show,” to be overbroad, because the proscription included such works as “Romeo and Juliet” and “Cat on a Hot Tin Roof.” We do not have the same constitutional invalidity here, because ORS 167.087(2) (c) excludes works with “literary” or “artistic” value.

12 As one commentator put it: “It may be possible to distinguish between degrees of explicitness in discussions of sex, but among explicit discussions of sex it is heroic to attempt to distinguish the good from the bad.” Kalven, “The Metaphysics of the Law of Obscenity,” 1960 S Ct Rev 1, 3.