Commonwealth v. Zone Book, Inc.

361 N.E.2d 1239, 372 Mass. 366, 2 Media L. Rep. (BNA) 2157, 1977 Mass. LEXIS 930
CourtMassachusetts Supreme Judicial Court
DecidedApril 13, 1977
StatusPublished
Cited by109 cases

This text of 361 N.E.2d 1239 (Commonwealth v. Zone Book, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Zone Book, Inc., 361 N.E.2d 1239, 372 Mass. 366, 2 Media L. Rep. (BNA) 2157, 1977 Mass. LEXIS 930 (Mass. 1977).

Opinions

Hennessey, C.J.

The Commonwealth prosecuted the defendant on two complaints charging possession of obscene magazines with intent to distribute them in violation of G. L. c. 272, § 29. The defendant filed motions to dismiss the complaints, alleging that the matter possessed constituted books, not magazines, so that the Commonwealth’s actions pursuant to § 29 were premature. General Laws c. 272, § 281, requires as a condition precedent to proceed[367]*367ings under § 29, involving “books,” the in rem procedures set forth in G. L. c. 272, §§ 28C, 28D, 28E, 28G, 28H.1 After denial of these motions the defendant successfully petitioned, pursuant to G. L. c. 211, §§ 3, 4A, for transfer of the cases to this court. A single justice of this court ordered the cases reserved and reported to the full court for decision.

In August, 1974, two Boston police department detectives entered premises controlled by the defendant looking for obscene materials. They purchased two printed publications, each consisting of more than forty pages, bound by staples, containing a series of photographs with incidental text but no advertising or variety in subject matter.2 The publications do not identify their photographers, editors, or publishers. One of them has, on its cover, a volume number I and the “warning[:] if you find sex offensive, do not purchase this magazine.” The publications themselves were offered in evidence.

[368]*368Two witnesses, a retail bookstore manager and a public librarian, agreed that they would classify these publications as paperback photography books, largely because neither publication gave any indication of serialization or periodicity. The witnesses also considered that the publications’ monographic contents, permanent staple bindings, and formats demonstrate that they are books, not magazines. The Commonwealth does not maintain that it proceeded against these publications under §§ 28C-28H before instituting § 29 proceedings.

The defendant argues that these publications are “books” within the ordinary and approved meaning of that word and that this meaning comports with the purposes of G. L. c. 272, §§ 28-32. Because the Commonwealth failed to comply with the requirements of G. L. c. 272, § 281, the defendant maintains the trial judge erred in denying the motions to dismiss. We agree.

We conclude on the evidence offered below that the publications involved herein are books and are not magazines, as matter of law, and therefore the Commonwealth was required to meet the condition of G. L. c. 272, § 281, before instituting § 29 proceedings against dissemination of these publications. Hence, the defendant’s motions to dismiss the complaints must be granted.

1. General Laws c. 272, § 281, states that “[t]he procedures set forth in sections twenty-eight C, twenty-eight D, twenty-eight E, twenty-eight G and twenty-eight H shall be a condition precedent to the institution of any proceedings pursuant to section twenty-nine or thirty for dissemination of obscene books.” Section 28C, as appearing in St. 1974, c. 430, § 3, provides for in rem proceedings against books believed to be obscene, with notice by publication generally and by registered mail “to the publisher ..., to the person holding the copyrights, and to the author, in case the names of any such persons appear upon said book____” Section 28D allows anyone interested in a book’s dissemination to file an answer, while § 28E permits adjudication of obscenity by general default if no [369]*369person answers. Sections 28F, 28G, and 28H deal with the in rem hearing itself and its legal effects.

The statutory scheme does not define “books,” although it defines “matter” as comprising “any printed material... including but not limited to, books, magazines,... pamphlets ____” G. L. c. 272, § 31, as appearing in St. 1974, c. 430, § 12. When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. See Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Franki Foundation Co. v. State Tax Comm’n, 361 Mass. 614, 617 (1972). We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.

The words “books” and “magazines” have established definitions in other legal contexts. In 1912, Mr. Justice Holmes, construing Federal postal statutes, said “generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation, and, perhaps, have an appreciable size.” Smith v. Hitchcock, 226 U.S. 53, 59 (1912). A United States District Court cited this language in the context of the Montana libel statute, looking also at the Montana Legislature’s purpose in giving special treatment to books (opportunity to correct libellous matter). Fifield v. American Auto. Ass’n, 262 F. Supp. 253, 255-257 (D. Mont. 1967). Similarly, looking at the legislative purpose in dealing specifically with “magazines,” courts generally have defined “magazines” as a subspecies of periodicals, emphasizing their periodicity, their continuity as to title and nature of contents from issue to issue, and their authorship usually by an editorial staff rather than by a single author. See id. at 256-257 (libel statute); Application of Wings Publication Co., 148 F.2d 214, 215 (C.C.P.A. 1945) (trademark statute); Business Statistics Organizations, Inc. v. Joseph, 299 N.Y. 443, 449 (1949) (sales tax ordinance). These definitions are consistent with the com[370]*370mon understanding of the words at issue as well as the dictionary definitions thereof.3

The apparent legislative purpose in especially protecting books is some indication, as shown in our reasoning below, that the Legislature intended to emphasize periodicity as a distinguishing criterion between books and magazines.

It appears that the Legislature intended that potential defendants under G. L. c. 272, §§ 29, 30, should receive the clearest possible notice of their liability for dissemination of obscene materials, as long as such notice would not compromise other policy considerations of the statutory scheme. Cf. Commonwealth v. 707 Main Corp., 371 Mass. 374, 381-382 (1976). In rem procedures provide disseminators with the clearest possible notice that the materials they disseminate are obscene and therefore dissemination constitutes prohibited conduct.4 See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54 (1973). These procedures, while providing constitutionally preferable notice, are characteristically expensive and time consuming. The Legislature apparently has concluded that the virtues of in rem notice outweigh the procedure’s time and expense defects when liability for dissemination of “books” is involved, but, when other matter is involved, that the needs for effective en[371]*371forcement and fiscal restraint override the value of in rem notice.

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361 N.E.2d 1239, 372 Mass. 366, 2 Media L. Rep. (BNA) 2157, 1977 Mass. LEXIS 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-zone-book-inc-mass-1977.