State v. Little Art Corporation

215 N.W.2d 853, 191 Neb. 448, 1974 Neb. LEXIS 888

• Court: Nebraska Supreme Court
• Decided: March 14, 1974
• Docket: 38542
• Status: Published

Opinions

Néwton, J.

This matter requires a construction of the Nebraska obscenity statutes. In the case of State v. Little Art Corp., 189 Neb. 681, 204 N. W. 2d 574, we sustained the conviction of defendant on a charge of publicly showing obscene moving picture films. On appeal to the United States Supreme Court the cause was remanded for a construction of the Nebraska statutes in the light of Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, and other recent decisions. See Little Art Corp. v. State of Nebraska, 414 U. S. 992, 94 S. Ct. 345, 38 L. Ed. 2d 231. The United States Supreme Court has required a similar construction of statutes in several other states by the state courts concerned.

In Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, the court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious, or filthy * * *” materials. The court stated: “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. £* * * (T)he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.’ United States v. Petrillo, 332 U. S. 1, 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no' sufficient reason to hold the language too ambiguous to define a criminal offense * * *.’ ”

In United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), the court, in footnote 7, refers to the language of the federal statute and states: “We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where £a serious doubt of constitutionality is raised’ and £a construction of the statute is fairly possible by which the question may be avoided.’ United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U. S. 22, 62 (1932). If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene/ ‘lewd/ ‘lascivious/ ‘filthy/ ‘indecent/ or ‘immorar as used to describe regulated material in 19 U. S. C. § 1305 (a) and 18 U. S. C. § 1462, see United States v. Orito, post, at 140 n. 1, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California, ante, at 25. See United States v. Thirty-seven-Photographs, supra, at 369-374 (opinion of White, J.). Of course, Congress could always define other specific ‘hard-core’ conduct.”

In Miller v. California, supra, it was held in relation to obscene materials: “* * * 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,” (Emphasis supplied.) It further states: “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, at 230, quoting Roth v. United States, supra, at 489, (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.”

In United States v. One Reel of Film, 481 F. 2d 206 (1st Cir., 1973), and United States v. Thevis, 484 F. 2d 1149 (5th Cir., 1973), the courts construed federal statutes in the light of footnote 7 of United States v. 12 200-Ft. Reels of Film, supra, and held the language used to be sufficiently specific.

The Nebraska statute, section 28-921, R. S. Supp., 1972, forbids the circulation or publication of “any obscene, lewd, indecent, or lascivious” material. Defendant asserts that this language is overbroad and not sufficiently specific to comply with the requirements of Miller and other recent cases. In so doing, footnote 7 of United States v. 12 200-Ft. Reels of Film, supra, is ignored by defendant. He likewise ignores section 28-926.07, R. R. S. 1943, which provides that in criminal proceedings brought under section 28-921, “the standard for judging obscenity to be applied as a guide by finders of fact in considering the evidence is whether to the average person the dominant theme of said material or conduct which is at issue in such civil action or criminal proceedings, taken as a whole, appeals to the prurient interest, which is to excite lustful thoughts, or a shameful or morbid interest in nudity, sex, or excretion which goes substantially beyond the customary limits of candor.”

Section 28-926.07, R. R. S. 1943, effectively narrows the standard of obscenity contained in section 28-921, R. S. Supp., 1972. The word prurient in its application to obscenity means “tending to excite lasciviousness” and lasciviousness means the presence or arousal of sexual desire. Similarly applied to obscenity the word lustful refers to sexual desire. Insofar as the phrase “a shameful or morbid interest in nudity, sex, or excretion which goes substantially beyond the customary limits of candor” is concerned, it will be noted that Miller v. California, supra, uses substantially the same language in defining permissible statutory standards in the examples therein set forth.

• We find that the Nebraska statutes fully comply with the requirements of Miller v. California, supra, and other, related cases. We further find that in once more affirming the conviction of defendant, no retroactive application of the law is involved. At the time of the violation by defendant our statutes were in full force and effect. Their meaning and purport were clear. We have not given them a new or different construction but have simply affirmed and called attention to their clear meaning and intent.

We reaffirm our holding in the former opinion rendered in this case.

Affirmed.