State v. Marshall

859 S.W.2d 289, 1993 Tenn. LEXIS 191

• Court: Tennessee Supreme Court
• Decided: May 17, 1993
• Status: Published

Opinions

OPINION

DROWOTA, Justice.

Permission to appeal has been granted to the Defendants-Appellants, Dudley W. Marshall and Carolyn A. Swanson, for the limited purpose of determining whether the statutes pursuant to which the Defendants were convicted of possession with intent to distribute obscene material (T.C.A. §§ 39-6-1101(5) and 39-6-1104(a)) violate Article I, Section 19 of the Tennessee Constitution.

The Defendants, who were employed as retail clerks in a bookstore called Paris Adult Theater in Memphis, were arrested on July 28, 1987 for their roles in selling a video cassette tape entitled “Anal Lust No. 1” to two Memphis police officers who were posing as customers. In the Criminal Court for Shelby County, a jury found the Defendants guilty of violating T.C.A. § 39-6-1104(a). Each of the Defendants was sentenced to serve four months in the Shelby County workhouse and was assessed a fine of $500.00.

The Defendants’ convictions were upheld by the Court of Criminal Appeals. With respect to the issues raised by the Defendants under Article I, Section 19 of the Tennessee Constitution, the Court of Criminal Appeals relied on this Court’s decision in Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738 (Tenn.1979).

This Court granted, on a limited basis, the Defendants’ application for permission to appeal for purposes of considering the Tennessee constitutional issue.

As in effect at the time of Defendants’ arrest on July 28, 1987, T.C.A. § 39-6-1104 provided, in pertinent part, as follows:

“(a) It shall be unlawful to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter.”

The term “obscene” was defined, for purposes of T.C.A. §§ 39-6-1101 through 39-6-1115, in T.C.A. § 39-6-1101(5) as follows:

“(A) That the average person applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(B) That the work depicts or describes, in a patently offensive way, sexual conduct; and

(C) That the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

The provisions of T.C.A. §§ 39-6-1104(a) and 39-6-1101(5) that were in effect in 1987 are currently codified, in substantially the same form, as T.C.A. §§ 39-17-902(a) and § 39-17-901(10), respectively.

PERIPHERAL ISSUES

The only issue that is before the Court is whether the provisions of T.C.A. §§ 39-6-1104(a) and § 39-6-1101(5), quoted above, are in violation of Article I, Section 19 of the Tennessee Constitution. The portion of Article I, Section 19 that is pertinent to this case is as follows:

“The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

We are dealing with a single, narrow issue. It is an issue that should not be confused with other issues that are not before the Court. To provide a clearer understanding of the limited nature of the issue before us, it may be helpful to specifically identify and list several peripheral issues that are not before us.

One issue that is not before the Court is whether the tape that the Defendants were convicted of possessing with intent to distribute, entitled “Anal Lust No. 1,” was “obscene” for purposes of T.C.A. §§ 39-6-1104(a) and § 39-6-1101(5). This issue was not before the Court of Criminal Appeals (the Court of Criminal Appeals stated: “Although no challenge is made to the question of whether the tape was obscene, we have examined it and there is no question that it is.”), and this issue is not before this Court. For purposes of this opinion, it is taken as true that the Defendants possessed “obscene matter” with intent to distribute it.

Another issue that should not be confused with the issue before us is whether T.C.A. §§ 39-6-1104(a) and § 39-6-1101(5) violate the First Amendment to the United States Constitution. This Court’s decision in Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738 (Tenn.1979), decided in accordance with the mandate of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), established that these statutes are not in violation of the First Amendment to the Constitution of the United States.

We are not called upon to decide whether this Court has the authority to declare that the statutes under consideration violate Article I, Section 19 of the Tennessee Constitution. This Court clearly does have such authority. In Miller v. State, 584 S.W.2d 758 (Tenn.1979), the Court made the following observation:

“As to Tennessee’s Constitution, we sit as the court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution. It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions.” 584 S.W.2d, at 760.

TENNESSEE OBSCENITY CASES UNDER ARTICLE I, SECTION 19

In Robert Arthur Management Corp. v. State, 220 Tenn. 101, 414 S.W.2d 638 (1966), this Court upheld an injunction prohibiting the distribution of a motion picture film that was alleged to be obscene. In the process of upholding the injunction, the Court stated as follows:

“Under the Constitution of the United States, obscenity is excluded from constitutional protection since it is utterly without redeeming social importance. Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Likewise under the Constitution of the State of Tennessee obscenity has no protection.” (Emphasis added.) 220 Tenn. 101, at 104, 105, 414 S.W.2d 638.

In Leech v. American Booksellers Ass’n, Inc., 582 S.W.2d 738 (Tenn.1979), this Court held that the Tennessee Obscenity Act of 1978 violated the First Amendment of the United States Constitution and Article I, Section 19 of the Tennessee Constitution. The Court described the result of its holding in that case as follows:

“However, this does not leave Tennessee without a criminal obscenity law. An unconstitutional act that purports to supersede or repeal an existing law is ineffective to do so, since a void law has no force and effect. State v. Dixon, 530 S.W.2d 73, 74-75 (Tenn.1975), and eases cited therein. The result is that the prior obscenity law, 1974 Tenn.Pub.Acts, ch. 510, as amended, is in full force and effect.” 582 S.W.2d at 740.

The statutes that are before the Court in this case are part of the legislation that was enacted by Public Acts of 1974, Chapter 510, which, following this Court’s holding in Leech v. American Booksellers Ass’n, Inc., supra, were “in full force and effect.”

In the process of concluding that the Tennessee Obscenity Act of 1978 violated both the federal and state constitutional provisions dealing with freedom of speech, this Court stated, in Leech v. American Booksellers Ass’n, Inc., as follows:

“This Court is of the opinion that the Tennessee constitutional provision assuring protection of speech and press, Tenn. Const, art. I, § 19, should be construed to have a scope at least as broad as that afforded those freedoms by the first amendment of the United States Constitution.

It is settled constitutional law that state supreme courts may not restrict the protection afforded by the federal constitution, as interpreted by the United States Supreme Court, but they may expand constitutional protections, even where the state and federal constitutions contain similar or identical provisions.

Thus, this Court may interpret Article I, § 19, as granting absolute protection to speech and press and forbid any and all regulation of pornography in Tennessee. We have no inclination to do so.” 582 S.W.2d at 745.

In addressing the issue before us in this case (whether Article I, Section 19 of the Tennessee Constitution affords greater protection to obscenity than is granted by the First Amendment of the United States Constitution), we are revisiting the identical issue that was presented in Leech v. American Booksellers Ass’n, Inc.

HISTORICAL BACKGROUND OF ARTICLE I, SECTION 19 OF THE TENNESSEE CONSTITUTION

The Constitution of Tennessee that is currently in effect, including Article I, Section 19 thereof, was adopted on May 5, 1870. The 1870 Constitution replaced a Constitution that was adopted by convention in Nashville in 1834, submitted to a general vote in 1835 and became effective by a proclamation of the Governor on March 27, 1835. The 1834-35 Constitution, in turn, replaced Tennessee’s first Constitution, which was adopted by convention on February 6, 1796.

The language currently contained in Article I, Section 19 of the Constitution of Tennessee was included, in almost identical form, as Section 19, Article XI of the 1796 Tennessee Constitution. There is no difference between the portion of Article I, Section 19 of the Constitution of 1870 that is pertinent to this litigation (the second sentence thereof) and the second sentence of Section 19 of Article XI of the 1796 Constitution.

Article XI of the Constitution of 1796 was the only Article of that Constitution that had a title; its title was “Declaration of Rights.” Article I of the current (1870) Constitution of Tennessee is also entitled “Declaration of Rights.”

Tennessee’s Constitution of 1796 was adopted by a convention of 55 delegates, five from each of the state’s 11 counties, who met in the early part of 1796. The adoption of a constitution was a preliminary step to the admission of Tennessee as the 16th state of the United States later that year. The historical records of the activity of the 1796 Constitutional Convention reveal very little regarding Article XI, Section 19 (Article I, Section 19 of the current Constitution). It is, however, clear that this portion of Tennessee’s Constitution was taken from the Pennsylvania Constitution of 1790. A Legal and Constitutional History of Tennessee, 1772-1972, Lewis L. Laska, 6 Mem.St.U.L.Rev., 563 (1976). The language in the second sentence of Section 19 of the Tennessee Declaration of Rights was contained, in virtually identical form, in Article 9, Section 7 of the Pennsylvania Constitution of 1790. The same language is currently contained in Article I, Section 7 of Pennsylvania’s current Constitution.

The courts in Pennsylvania have examined, in considerable detail, the origin of the language from which Article I, Section 19 of Tennessee’s current Constitution was derived. The Pennsylvania courts have also considered whether this constitutional language affords any greater protection to obscene material than is afforded by the First Amendment to the United States Constitution.

In Long v. 130 Market Street Gift & Novelty of Johnstown, 294 Pa.Super. 383, 440 A.2d 517 (1982), the Superior Court of Pennsylvania upheld an injunction prohibiting the sale or distribution of certain obscene publications and films. In doing so, the Court reviewed the history and meaning of Pennsylvania’s constitutional provision dealing with freedom of expression. The Court quoted Article I, Section 7 of the current Pennsylvania Constitution as follows:

“The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject being responsible for the abuse of that liberty.” (Emphasis added.) 440 A.2d at 522.

The Court, in Long v. 130 Market Street Gift & Novelty of Johnstown, contrasted the current provisions of Article I, Section 7 of Pennsylvania’s Constitution with Pennsylvania’s first Constitution. The Court stated as follows:

“The Commonwealth’s Constitution of 1776 guaranteed the right to freedom of expression in these words:

‘That the people have a right to freedom of speech, and of writing, in publishing their sentiments; therefore, the freedom of press ought not to be restrained.’

Pa. Const, of 1776, Declaration of Rights, Section 12.” 440 A.2d at 524.

The Court then discussed the change that was made to the foregoing language in adopting Pennsylvania’s Constitution of 1790. The purpose of the change was to add an element of personal accountability for abuses of the freedom of expression. The Court stated as follows:

“The Constitution of 1776 did not address the question of a person’s responsibility for his utterances or publications once they were made. The apparent absoluteness of the 1776 guarantee of freedom of expression and its capability for abuse gave rise to an exemption from its protection, for soon it became clear, that although the freedom of expression is arguably an absolute right, the right to protection from prosecution for abuse of the freedom is a limited one. As early as 1788 the Supreme Court of Pennsylvania stated:

‘The true liberty of the press is amply secured by permitting every man to publish his opinion; but it is due to the peace and dignity of society to inquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government would afford protection and immunity.’

Respublica v. Oswald, 1 U.S. (1 Dallas) 319, 1 L.Ed. 155 (1788).” (Emphasis in original.) 440 A.2d at 524, 525.

The Superior Court of Pennsylvania stated that the sentiment expressed in the Res-publica v. Oswald case in 1788 was expressed in the Commonwealth of Pennsylvania’s new Constitution two years later in 1790. With respect to Pennsylvania’s Constitution of 1790, the Court stated as follows:

“The wording under our present Constitution is identical to that in the Constitution of 1790. Pa. Const, of 1790, art. IX, § 7; Pa. Const, of 1874, art. I, § 7. In this way the guarantees of free speech and press, which Blackstone had set down merely as principles of the common law, became part of the bedrock of Pennsylvania’s constitutional system. See IV Blackstone’s Commentaries, 151-152. Thus we see that under our Constitutions there are two distinct elements to the right to freedom of expression. The first, arguably an absolute right, guarantees to each citizen the freedom to make public whatever he may choose. The prohibition against the prior restraint of publication serves to protect the sanctity of this right. The second, clearly a limited right, guarantees to the same citizen protection from prosecution arising from the exercise of the right of publication, except when those publications are, as Blackstone put it, somehow ‘destructive of the ends of society.” Id. It would seem that the right to trial by jury, Pa. Const., Art. I, Sections 6, 7 and 9, protects the sanctity of this more limited right.” 440 A.2d at 525.

The Court stated as follows regarding the second, limited right contained in Pennsylvania’s Constitution:

“We have found no authority in this Commonwealth that extends to obscene matter the limited right to exemption from prosecution or punishment for its publication, which right many other forms of expression enjoy under the second element of our Constitution’s free speech guarantee.” 440 A.2d at 526.

The Superior Court of Pennsylvania stated its conclusion in Long v. ISO Market Street Gift & Novelty of Johnstown, as follows:

“It follows therefrom that there is in Pennsylvania no fundamental right to protection from prosecution for the publication of matter abusive of the right of free expression, viz. obscene matter. In short, obscenity does not enjoy the full protection of Art. I, § 7 of the Pennsylvania Constitution of 1874.” 440 A.2d at 526, 527.

In Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984), the Superior Court of Pennsylvania followed its earlier holding in Long v. 130 Market Street Gift & Novelty of Johnstown. In Commonwealth v. Croll, the Court upheld the conviction of a defendant for sales of obscene material under a statute very similar to T.C.A. §§ 39-6-1104(a) and § 39-6-1101(5). The Court described the background of the statute and the defendant’s argument with respect to the validity thereof as follows:

“Appellant concedes that the Pennsylvania Act was amended ‘with slavish adherence to’ the decision of the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, rehearing denied, 414 U.S. 881, 94 , 38 L.Ed.2d 128 (1973). In spite of that, he argues that ‘obscenity is impossible of definition’ and that we should, therefore, ‘set a higher standard for the State of Pennsylvania in obscenity criminal matters.’ ” 480 A.2d at 269.

The Court’s holding in Commonwealth v. Croll, was as follows:

“It is clear to us, and we therefore hold, that Art. I, § 7 of the Pennsylvania Constitution affords no greater protection from prosecution for the distribution and sale of obscene materials than do the First and Fourteenth Amendments to the United States Constitution.” 480 A.2d at 269.

The holdings of the decisions in Long v. 130 Market Street Gift & Novelty of Johnstown and Commonwealth v. Croll, have been reaffirmed by he Superior Court of Pennsylvania in Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985), and in Commonwealth v. Stock, 346 Pa.Super. 60, 499 A.2d 308 (1985).

CONCLUSION

There is no indication in the journals chronicling the historical development of the Constitutions of Tennessee, nor in any prior Tennessee Supreme Court cases, that the delegates to Tennessee’s Constitutional Convention in 1796 intended, when they adopted, verbatim, the language that was contained in Article 9, Section 7 of the Pennsylvania Constitution of 1790, that such language have any meaning other than that which had been, and continues to be, attributed to it in the context of the Pennsylvania Constitution of 1790. The Superior Court of Pennsylvania stated that it had not found any:

“authority in this Commonwealth that extends to obscene matter the limited right to exemption from prosecution from punishment for its publication, which right many other forms of expression enjoy under the second element of our Constitution’s free speech guarantees.” 440 A.2d at 526.

Similarly, we have found no such authority in the State of Tennessee. Indeed, this Court’s holdings in Robert Arthur Management Corp. v. State, supra, and Leech v. American Booksellers Ass’n, Inc., supra, are consistent with the Pennsylvania decisions discussed above. This Court held in Robert Arthur Management Corp. v. State that, “Under the Constitution of the State of Tennessee obscenity has no protection.” 220 Tenn. 101, at 105, 414 S.W.2d 638.

Under Article I, Section 19 of the Constitution of Tennessee, no protection from prosecution is guaranteed for publication of material that is “destructive of the ends of society.” 440 A.2d 517, at 525. The General Assembly, in enacting T.C.A. §§ 39-6-1104(a) and 39-6-1101(5), proscribed publication of material that is “patently offensive” and “appeals to the prurient interest” and that “lacks serious literary, artistic, political, or scientific value.” It was reasonable for the General Assembly to conclude that such material is “destructive of the ends of society.”

Notwithstanding the dramatic tone of the dissent, it can hardly be said that freedom of expression “is handed into the willing grasp of the censor [to] abolish what has been conceived to be a constitutional right.” The dissent advocates the protection of obscenity as speech under the Tennessee Constitution and describes its approach as traditional. In dramatic terms it complains that the majority’s view will lead to censorship. Protecting obscene speech can hardly be described as traditional. Forty-eight other states, the United States, and virtually all the countries of the civilized world interpret their Constitutions or laws as affording no protection to obscene speech. The dissent’s view is not only nontraditional, it is extreme. To follow the dissent’s view to its logical conclusion would result in finding the statute unconstitutional.

We hold that T.C.A. §§ 39-6-1104(a) and 39-6-1101(5) do not violate the provisions of Article I, Section 19 of the Tennessee Constitution. This holding does not mean that our interpretation of the protection granted to “free communication of thoughts and opinions” in Article I, Section 19 of the Constitution of Tennessee is necessarily identical to the U.S. Supreme Court’s interpretation of the rights granted under the First and 14th Amendments to the U.S. Constitution. We reserve our authority as “the court of last resort” in interpreting the Constitution of Tennessee.

The judgment of the Court of Criminal Appeals is affirmed. Costs will be taxed to the Appellants.

O’BRIEN and ANDERSON, JJ., concur. REID, C.J., and DAUGHTREY, J., concur and dissent in separate opinion.