Hudson v. United States

234 A.2d 903, 1967 D.C. App. LEXIS 202

• Court: District of Columbia Court of Appeals
• Decided: November 14, 1967
• Docket: 4268, 4269
• Status: Published

Opinions

MYERS, Associate Judge:

Appellants¹ were convicted of staging obscene shows in the District of Columbia in violation of § 22-2001 D.C.Code (1961 ed.).²

Although in obscenity cases, as in all other cases relating to First Amendment guarantees of free expression, it is usually the duty of an appellate court to review the evidence, from the trial court for the purpose of making “an independent constitutional judgment on the' facts of the case as to whether the material involved is constitutionally protected,” Jacobellis v. State of Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1678, 12 L.Ed.2d 793 (1964).³ in view of our disposition of the present appeal, we find it unnecessary to consider the factual issues supporting the obscenity charge.

In 1957, the United States Supreme Court in Roth v. United States, 354 , 77 S.Ct. 1304, 1 L.Ed.2d 1498, first announced that the constitutional test of “obscenity” is whether, to the average person applying “contemporary community standards,” the dominant theme of the material as a whole appeals to a prurient interest in sex. Under this test, “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.” A book named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachussetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966).⁴

The only question before us is whether the trial court properly applied that part of the definition dealing with “contemporary community standards.” Specifically, the issues are: (1) does the word “community” refer to a “local community” or to the nation as a whole and (2) is the Government required to offer competent evidence to prove “contemporary standards” in the community.

I

We are of the opinion that the trial court correctly instructed the jury that to determine whether a show offends contemporary community standards of decency, reference must be made to community standards prevailing in the nation generally and not to the local standards of any specific state, county or city. To choose the mores of a locality as the standard by which permissible limits of candor and conduct are measured could effectively deny citizens of one jurisdiction access to entertainment generally available in other communities and cities in this country. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962).

As used in statutory language, the word “obscene” is intended to have a meaning that varies from time to time as general notions of decency in attire and conduct of exhibitions for public entertainment tend to change. It is not meant to “embalm the precise morals of an age or place.” United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913). On the other hand, at any one time, the meaning is not intended to vary from place to place. In Jacobellis v. State of Ohio, supra, Mr. Justice Brennan, in delivering the opinion, stated:

“The Court has explicitly refused to tolerate a result whereby ‘the constitutional limits of free expression in the Nation would vary with state lines,’ Pennekamp v. State of Florida, 328 U.S. 331 at 335, 66 S.Ct. 1029, 90 L.Ed. 1295.” 378 U.S. at 194, 84 S.Ct. at 1682.

“We do not see how any ‘local’ definition of the ‘community’ could properly be employed in delineating the area of expression that is protected by the Federal Constitution. * * * ” at 193, 84 S.Ct. at 1681.

“We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.” at 195, 84 S.Ct. at 1682.

Although it is not clear that Mr. Justice Brennan was speaking for a majority of the court in this part of the opinion ⁵ and the question may not have been squarely decided, we find the reasoning in that opinion most persuasive. Accordingly, we rule that, in the District of Columbia, community standards in obscenity cases shall be determined by reference to contemporary community standards in the nation as a whole.

II

In opposing this appeal, the Government contends that whether the relevant community standards are local or national, it is not necessary for the Government to introduce any evidence to prove these standards. It is strongly urged that these standards may be determined solely in the light of the judge’s or jurors’ own experience and common sense. This may be true where “hardcore pornography,” which is so offensive that “no conceivable community standard * * * would permit [its showing],” is involved. Womack v. United States, 111 U.S.App.D.C. 8, 10, 294 F.2d 204, 206 (1961). The case at bar, however, does not fall into that category, and knowledge of contemporary community standards, especially on a nationwide basis, is no more available to the trier of fact than the innumerable other facts which must normally be proved in an evidentiary way in many other trials.

Where the material involved is not patently obscene, neither a judge nor twelve local jurors chosen at random are capable of determining the standards of tolerance prevalent in the nation- generally without first being given some competent evidence of what those standards are. United States v. Klaw, 350 F.2d 155, 168 n. 14 (2d Cir. 1965). A guilty verdict in an obscenity trial should not be a legal expression of revulsion by the local community from which the jury is drawn. If a case is submitted to the trier of fact without first establishing the community standards by competent evidence to which the trier may refer, the verdict at best will be based on the prevailing customs in a limited geographical area and, at worst, upon the “subjective reflection of taste or moral outlook of individual jurors or individual judges. * * * [T]he determination of obscenity is for juror or judge, not on the basis of his personal upbringing or restricted reflection or the particular experience of life, but on the basis of ‘contemporary community standards’.” Smith v. People of State of California, 361 U.S. 147, 165, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959), concurring opinion of Mr. Justice Frankfurter. These standards must be established by relevant evidence at trial.⁶

Since the prosecution in the present case had the burden of proving relevant community standards prevailing in the nation generally and elected not to do so, we hold that the Government failed to establish an essential element of the crime charged and the verdicts of guilty were therefore in error.

Reversed and remanded with directions to enter judgments of acquittal.

1 . Attenson is the manager of a local burlesque theater; the other appellants are dancers who allegedly performed strip-tease acts with his knowledge and approval.

2 . “Whoever * * * gives or participates in, or by bill, poster, or otherwise advertises, any public exhibition, show, performance, or play containing obscene, indecent, or lascivious language, postures, or suggestions, or otherwise offending public decency, shall be fined * *

3 .As Mr. Justice Brennan pointed out, the obligation of the appellate court cannot properly be labeled a “censor” or “super-censor” function, since its only purpose is to test a challenged obscenity judgment against First Amendment guarantees.

4 . In addition to applying to printed matter, such as hooks and photographs, the same standards are also extended to motion pictures, plays and burlesque shows, which are forms of speech and prima facie expressions protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 843 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) [motion picture]; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519 (1953) [burlesque show]; Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472, 126 A.2d 340 (1956) [burlesque show].

5 . While six justices concurred in the result, Mr. Justice Brennan’s opinion represents his own view and that of Mr. Justice Goldberg. The two concurring opinions do not address themselves squarely to the issue in this case. See also the dissenting opinion of Mr. Justice Black v. Ginzburg v. United States, 383 U.S. 463, 480, 86 S.Ct. 942, 16 L.Ed. 2d 31 (1966).

6 . Insofar as any language in Clarke v. United States, D.C.Mun.App., 160 A.2d 97 (1960) or in Yankovitz v. United States, D.C.Mun.App., 182 A.2d 889 (1962), could be construed to establish a local community standard or to relieve the government of its duty to prove prevailing community standards, it is overruled.