City of St. George v. Turner

813 P.2d 1188, 162 Utah Adv. Rep. 47, 1991 Utah App. LEXIS 81, 1991 WL 107406

• Court: Court of Appeals of Utah
• Decided: June 6, 1991
• Docket: 890620-CA
• Status: Published

Opinions

OPINION

GARFF, Judge:

INTRODUCTION

Appellant, Brent Allen Turner, appeals his conviction of displaying an obscene picture depicting sexual conduct in violation of St. George City Ordinance No. 2-77-2. We reverse.

FACTS

Turner operated a retail business in St. George, Utah, vending hard rock record albums and T-shirts. Turner’s small, sign-less store was open during evening hours only. He was charged with violating the St. George obscenity ordinance for his display of three painted bed sheets which he used as wall hangings and which were visible to anyone entering the shop.

Several people made their “artistic” contributions to the sheets as they hung on the wall. The sheets appear to be a collage consisting of various drawings and slogans in different sizes and styles. The paint appears to have been sprayed or brushed on. The pictures and slogans appear crude and simplistic. Several factors make some of the slogans and drawings impossible to discern from the record: the quality of the photographs in the exhibit, the draping of the sheets, and the fact that some stereo speakers appear in front of the sheets in the photographs. The slogans and drawings appear intended to confront and to offend, and are related to sexual, political, religious, and social themes.¹ The portion of the wall hangings that the prosecution claims violates the St. George ordinance supposedly portrays a woman reclining in a spread-eagled manner so as to expose her “pubic area,” represented by three or four black paint spots. The face and head of the figure could conceivably be that of a dog. Next to the drawing of the woman is what has been represented to be an enlarged drawing of a woman’s pubic area. Both renditions are crudely drawn, blurry and indistinct. The quality of the renderings could best be compared to the graffiti and drawings frequently found on the walls of a junior high school rest room.²

Turner was charged with violating St. George City Obscenity Ordinance No. 2-77-2 §§ 2a(l) and (2). The relevant portions of this lengthy ordinance are as follows:

No person shall knowingly: (1) Distribute, display publicly, furnish or provide to any person any obscene material or performance.

St. George, Utah, Ord. No. 2-77-2, § 2a(l). “Obscene” is defined as

any material or performance which, when taken as a whole and considered in the context of the contemporary standards of this community:

(1) Appeals to prurient interest in sex;

(2) Portrays sexual conduct in a patently offensive manner;

(3) Has no serious literary, artistic, political or scientific value.

St. George, Utah, Ord. No. 2-77-2, § la. The ordinance provides a lengthy definition of “sexual conduct,” the relevant portion of which is as follows:

(2) Masturbation, excretion, excretory function or lewd exhibition of the genitals, including any explicit close-up representation of a human genital organ or a spread eagle exposure of female genital organs.

St. George, Utah, Ord. No. 2-77-2, § le (emphasis added).

A jury found Turner guilty. He now appeals his conviction on the grounds that (1) the obscenity ordinance was unconstitutional as applied to him, and (2) the ordinance is unconstitutionally vague and over-broad.

FIRST AMENDMENT

In a case where we are required to weigh important first amendment values of freedom of speech against a charge of obscenity based on a statute or ordinance that is properly limited, we exercise independent review when necessary, and determine, as a matter of constitutional law, whether the material is to be protected. Jenkins v. Georgia, 418 U.S. 153, 160, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974).³

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court set forth its definition of obscenity. The standard has been elaborated in subsequent cases,⁴ and it remains the standard for distinguishing between speech, which is protected by the First Amendment of the United States Constitution, and obscenity, which is not considered speech and receives no such protection. Id. at 23, 93 S.Ct. at 2614; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54, 93 S.Ct. 2628, 2633, 37 L.Ed.2d 446 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).⁵

The Miller test is as follows:

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; (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.

413 U.S. at 24, 93 S.Ct. at 2615 (quotations and citations omitted). The Miller test is basically incorporated into the St. George ordinance, except that the ordinance defines “sexual conduct” in ways not specifically mentioned in Miller. Specifically, the St. George ordinance prohibits the display of “any explicit close-up representation of ... a spread eagle exposure of female genital organs.” St. George, Utah, Ord. No. 2-77-2, § le. However, among the “plain examples” given by the Miller court as to what a statute or ordinance can define for regulation as patently offensive sexual conduct was the “lewd exhibition of the genitals.” Miller, 413 U.S. at 25, 93 S.Ct. at 2615. We find that, insofar as the definition describes materials that “depict or describe patently offensive ‘hard core’ sexual conduct” and insofar as that sexual conduct passes muster under the Miller test, which it must under section 1(a) of the ordinance, the ordinance is within constitutional limits.⁶ Jenkins, 418 U.S. at 160, 94 S.Ct. at 2755 (quoting Miller, 413 U.S. at 27, 93 S.Ct. at 2616).

PRURIENT INTEREST AND PATENTLY OFFENSIVE

The first prong of the Miller analysis requires the trier of fact to determine whether the “ ‘average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest.” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) (quoting Roth v. United States, 354 U.S. 476, 489, 77 5.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957)).

Material that appeals to the prurient interest does not include “material that provoke[s] only normal, healthy sexual desires.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498, 105 S.Ct. 2794, 2799, 86 L.Ed.2d 894 (1985). Rather, it applies to material that provokes “sexual responses over and beyond those that would be characterized as normal.” Id. Specifically, “prurience may be constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful or morbid interest in sex....” Id. at 504, 105 S.Ct. at 2802.

The second prong of the Miller analysis is “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Miller, 413 U.S. at 24, 93 S.Ct. at 2615.

When determining what appeals to the prurient interest and what is patently offensive, the jury is not allowed unbridled discretion. Jenkins v. Georgia, 418 U.S. 153, 160, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974). The trial judge has a significant role in defining the extent of the jury’s discretion. “Application of the obscenity standard involves a subjective element on the part of the tribunal — judge, jury or both — making the critical determination.” Huffman v. United States, 470 F.2d 386, 397 (D.C.Cir.1971) (rev’d on other grounds, 502 F.2d 419 (D.C.Cir.1974)). In addition, jury discretion is subject to independent appellate review, when necessary, and by the requirement that only depictions of patently offensive hard core sexual conduct be subject to prosecution. Jenkins, 418 U.S. at 160, 94 S.Ct. at 2755. Therefore, in Jenkins, the Supreme Court did not hesitate to invade the province of the jury, which the Georgia Supreme Court had refused to do. In overturning the verdict, the Supreme Court ruled that the jury did not have sole discretion to determine that the film Carnal Knowledge was obscene, and substituted its judgment for that of the jury because, it concluded, it was “simply not the ‘public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain’ which we said was punishable in Miller.” 418 U.S. at 162, 94 S.Ct. at 2756 (quoting Miller, 413 U.S. at 35, 93 S.Ct. at 2621). Thus, there is a constitutional threshold of “hard-coreness” that must be met.

Not only must the statute or ordinance be constitutionally explicit, but the trial court has the responsibility to make a threshold determination as to whether a work may depict hard-core sexual conduct. Only after the court has reached this conclusion is it appropriate to turn the matter over to the jury to apply the first two prongs of the Miller test.⁷ Accordingly, we consider whether the trial court correctly made the threshold determination contemplated in Jenkins.⁸ The court, in its pretrial order denying a motion to dismiss, found that “the words and drawing described herein arguably suggest an act which would constitute a violation of the ordinance, i.e., an act of oral-genital contact.”

While the spray painted drawings depict representations of genitalia, the drawings are too crudely rendered to be salacious or titillating or to provoke sexual responses, normal or healthy, much less those that are “over and beyond those that would be characterized as normal.” Brockett, 472 U.S. at 498, 105 S.Ct. at 2799. “Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). The arresting officer admitted as much at trial. Even though the drawings are vulgar, offensive, and confrontational, they are too sketchy and abstract to appeal “to a shameful or morbid interest in sex.” Brockett, 472 U.S. at 504, 105 S.Ct. at 2802.⁹ The trial court’s pretrial finding of an “arguable suggestion” is not sufficient to meet the constitutional test, and our own review of the evidence leads us to the conclusion that, as a matter of law, these renderings are not “public portrayal[s] of hard-core sexual conduct for its own sake, and for the ensuing commercial gain.” Jenkins, 418 U.S. at 161, 94 S.Ct. at 2755 (quoting Miller, 413 U.S. at 35, 93 S.Ct. at 2621).

Moreover, we cannot judge the drawings in isolation, but must also consider the written material and other symbols because Miller requires us to view the collage “taken as a whole” in determining its appeal to the prurient interest. 413 U.S. at 24, 93 S.Ct. at 2615. In Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972),¹⁰ the Supreme Court considered the context in which an allegedly obscene work was displayed. Kois involved the publication of a photograph of an embracing nude couple, similar to one confiscated by a Wisconsin district attorney. Because the accompanying article was about the confiscation, the Court held that the picture was newsworthy and thus protected. Laying a foundation for what would later be the third prong of the Miller analysis, the Court held that context could redeem an otherwise obscene picture where there is some contextual relativity between the offending portion and the rest of the work: “A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication.” 408 U.S. at 281, 92 S.Ct. at 2246. The Court held that because the picture was “rationally related” and “relevant to the theme of the article,” it was “clearly entitled” to protection. Id.

Here, the two drawings do not appear as a sham attempt to insulate obscene material with protected material. That is, while the two drawings may be more confrontational and vulgar than what appears on the rest of the bedsheets, they are not entirely out of context with the other depictions of political, philosophical, musical, social and sexual themes. Because the work is a collage, there is not a close relationship among all the slogans and symbols. However, a close relationship is not the requirement; a rational relationship is. Kois, 408 U.S. at 231, 92 S.Ct. at 2246.¹¹

The two drawings meet the Kois test because they rationally relate to the immediate context (the wall hangings) and to the broader context (the record store). The immediate context is a collage of various symbols and phrases. The broader context is that of a hard rock record store which vends heavy metal music, which music is intended, in part, to challenge traditional ideas and modes of thinking.

Therefore, even if we were to concede, which we do not, that the two key drawings appeal to the prurient interest and are patently offensive, we cannot see how the entire collage, taken as a whole, is so.

Because we conclude, as a matter of law, that the drawings themselves do not appeal to the prurient interest and are not patently offensive, and because the drawings rationally relate to the rest of the collage, which, taken as a whole, is not patently offensive and does not appeal to the prurient interest, we find that the drawings are not in violation of the St. George ordinance.

We therefore reverse the conviction.

ORME, J., concurs.

1 . The slogans include "Nuke My Ass,” “Your [sic] Afraid Face it,” "Group Sex,” “Total Peace,” "Fuck Authority," "Burn the Dead,” "Eat It," "Live-Die Airborne,” "Hell House,” “Kill for God,” "Run and Hide Death Will Find You!,” “Sold Your Soul,” "White Flys [sic] Will Eat Your Flesh,” "The End,” “And Unto You I Dedicate My Heart,” and "My Right to The World.” The drawings include a peace symbol, an MX missile, a swastika, some gravestones, some crosses, some international prohibitive symbols over the words "life" and "drugs,” a smiling face, a gun, several skulls, some with cross bones, some with full skeletons, a door, a mushroom cloud, and a moon.

2 . The dissent’s description of the two drawings gives the impression one is looking at an explicit medical illustration from Gray’s Anatomy, or viewing an exact photograph of the area in question, leaving no room for dispute as to what the renditions depict. Such is simply not the case. The second drawing, described in such intimate detail, could just as easily be viewed as a beetle, a leaf, or a Zulu war shield. Or it might more closely resemble a fugitive ink blot from the Rorschach test ("A personality and intelligence test in which a subject interprets ten standard black or colored inkblot designs and reveals through his selectivity the manner in which intellectual and emotional factors are integrated in his perception of environmental stimuli.” Webster’s Medical Desk Dictionary (1986)). Because the drawings were sufficiently abstract so as to permit a variety of nonobscene interpretations, and because of the other reasons enumerated later in this opinion, the judge, as a matter of law, should have never permitted the issue to go to the jury.

3 . "[T]he First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Jenkins, 418 U.S. at 160, 94 S.Ct. at 2755 (quoting Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973)). See also, Jenkins, 418 U.S. at 163-64, 94 S.Ct. at 2756 (Brennan, J. concurring).

4 . For example, Brackett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) (elaboration of prurient interest): and Jenkins, 418 U.S. 153, 94 S.Ct. 2750 (elaboration of community standards).

5 . The prosecution argues that, because the record shop is near a school and because minors are likely to frequent the shop, we should apply the lower standard suggested in Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975) (discussing content-neutral time, place and manner regulations of speech). However, the St. George ordinance fails to regulate the time, place, or manner that sexually explicit material may be displayed, but instead, it places a content-based restriction on any display of sexually explicit material. Consequently, we must apply the stricter test set forth in Miller, 413 U.S. 15, 93 S.Ct. 2607. Additionally, because the shop is unmarked and is only open evenings, when school is not in session, it does not appear that minors are especially likely to frequent the shop.

6 . Because we reverse on other grounds, we do not consider whether the depiction at issue is lewd.

7 . In a recent case, State v. Ramirez, 159 Utah Adv.Rep. 7, 9, — P.2d — (1991), the Utah Supreme Court commented on the distinctions between the overlapping roles of the trial court and the jury. Even though Ramirez was concerned with the admission of eyewitness identification, we find the court’s comments appropriate here where the trial court has to make a preliminary determination of obscenity when that same issue will have to be redetermined by the jury when the evidence is considered:

Potential for role confusion and for erosion of constitutional guarantees inheres in this overlap of responsibility of judge and jury to determine the same issue. Because the jury is not bound by the judge’s preliminary factual determination made in ruling on admissibility[/obscenity] the trial court may be tempted to abdicate its charge as gatekeeper to carefully scrutinize proffered evidence for constitutional defects and may simply admit the evidence, leaving all questions pertinent to its reliability[/obscenity] to the jury. But courts cannot properly sidestep their responsibility to perform the required constitutional admissibility[/obscenity] analysis. To do so would leave protection of constitutional rights to the whim of a jury and would abandon the courts’ responsibility to apply the law.

8 ."Judges ... must take care lest they decide these cases on the basis simply of their indignation and disgust with the kind of trash presented. The First Amendment extends to trash, if it stops short of obscenity....” Huffman, 470 F.2d at 396. Even though a piece may be "dismally unpleasant, uncouth and tawdry,” that alone "is not enough to make [it] ‘obscene.’” Manual Enter. v. Day, 370 U.S. 478, 490, 82 S.Ct. 1432, 1438, 8 L.Ed.2d 639 (1962).

9 . “The First Amendment protection for the depiction of nude women applies even ... where the pictures focus upon the pubic areas and poses are struck in such a way as to emphasize the female genitalia." Huffman, 470 F.2d at 401.

10 . Although Kois preceded Miller, Miller frequently cites the case with approval, indicating an intent to reaffirm the decision and its analysis. Miller, 413 U.S. at 23, 24, 25, 26, 35, 37, 93 S.Ct. at 2614, 2615, 2621, 2622. Also, the test in Kois was whether "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Kois, 408 U.S. at 230, 92 S.Ct. at 2246 (quoting Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957)). Although this phrase implies that the Kois phrase "taken as a whole" applies only to the first part of the Miller test, the crux of Kois was whether an allegedly obscene depiction had political value. We think the Kois analysis of "taken as a whole” is helpful in both the first and third prongs of the Miller test.

11 . The Kois Court's use of the phrase "rationally related” suggests a low level of integration between an offending picture and its larger context. See E. Main, The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value, 11 S.IU.Univ. L.J. 1159, 1163-64 (1987).