State v. Phillips

540 P.2d 936, 1975 Utah LEXIS 765

• Court: Utah Supreme Court
• Decided: September 15, 1975
• Docket: 13816
• Status: Published

Opinions

CROCKETT, Justice:

Each of the three named defendants was convicted by the Ogden City Court of distributing pornographic materials from the Adult Book and Cinema Store in Ogden, in violation of Section 76-10-1204, U.C.A. 1953. On appeal to the district court, their convictions were affirmed; and because of the constitutional issue, they appeal to this court.¹

Defendants have • made no contention that the materials were not pornographic, but concede that fact. Their defense is that our statutes are unconstitutional. Pornographic material as proscribed in the section referred to is defined in the preceding section, 76-10-1203, U.C.A.19S3:

(1) Any material or performance is pornographic, if, considered as a whole, applying contemporary community standards :

(a) Its predominant appeal is to prurient interests; and

(b) It goes substantially beyond customary limits of candor in the description or representation of nudity, sex, or excretion.

(2) In any prosecution dealing with an offense relating to pornographic material or performances, the question whether the predominant appeal of material or of a performance is to prurient interest shall be determined with reference to average adults.

The primary basis of defendants’ attack upon this statute is that it is in conflict with the First Amendment of the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The rule which should be applied is that laws, and especially foundational laws such as our Constitution, should be interpreted and applied according to the plain import of their language as it would be understood by persons of ordinary intelligence and experience. Viewed in that light it is submitted that this provision is simply, solely, expressly and utterly, nothing more and nothing less than a limitation upon the Congress of the United States and the powers of the federal government.

This is made abundantly clear by the other amendments adopted at the same time.

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or the people.

The reasonable and judicious approach to the application of these amendment requires that they be considered together, and in the light of the background and purposes for which they were adopted, and this applies with equal force and appropriateness to the Fourteenth Amendment, which has been used to distort and nullify, in some measure, the purposes of the First Ten Amendments. The latter arose out of political and religious strife and oppressions; and that was what they were intended to remedy. In our judgment it is an egregious error to take such declarations out of their background and their clearly expressed intent and extend them into unintended areas across the whole spectrum of human conduct. What the claimed “right” to spew the filth of pornographic and obscene materials on one’s fellowmen has to do with political and religious liberty is difficult to perceive.

The foregoing is said in awareness of the proliferations that have occurred on the First Ten Amendments, and particularly by the use of the Fourteenth Amendment, to extend and engraft upon the sovereign states, limitations intended only for the federal government.² This has resulted in a constant and seemingly endless process of arrogating to the federal government more and more of the powers, not only not granted to it, but expressly forbidden to it, and in disparagement of the powers properly belonging to the sovereign states and the people. This development is a clear vindiction of the forebodings of the founding fathers and their fears of centralization of power. This was but natural because of the conditions out of which our form of government came into being and because history is strewn with other examples which demonstrate that undue, uncontrolled and unwieldy concentrations of power in any individual or institution tends to destroy itself. It is our opinion that this is the evil which the founders feared so keenly and tried so zealously to guard against, but which is now rife upon us. It is plainly evident that it was their desire and purpose to avoid this by providing for what they believed to be an essential and desirable balance of power between the sovereignties of the states and of the federal government.

What we have just said is with the utmost respect, and indeed devotion, to our system of government. This includes devotion to the founders’ concept of a sovereign nation consisting of sovereign states, with the respective sovereignties so interrelated that their sovereign powers check and balance each other; which we think it is of the utmost importance to respect and maintain. Consequently, we feel impelled to voice our disagreement with the almost unbelievable arrogation of power by and to the federal government and its judiciary in which the defendants seek protection of the sale of materials of the character here involved. This thinking is represented, at least in some measure, by Chief Justice Burger in his statement in the recent decision of Miller v. California,³ with which we heartily agree and commend: “That such conduct must be specifically defined by the applicable state law, as written or authoritatively construed . . .” and further “. . . we emphasize that it is not our function to propose regulatory schemes for the States.” [All emphasis in this opinion is ours.]

Having made our statement concerning the defendants’ contentions in regard to the federal constitution, we turn to what we regard as the pertinent issue here under the constitution of our own state, Article I, Section 1 of the Utah constitution, that “all men have the inherent and inalienable right ... to communicate freely their thoughts and opinions . .” Consistent with that provision, and notwithstanding what else has been said herein, we have no desire to disparage the idea that every person should have the highest possible degree of freedom of thought, expression and action consistent with respecting similar rights in other individuals and the welfare of society generally-

Despite salutary constitutional guarantees of rights and liberties, with which we are in unreserved accord, advocacy of any of them as absolute fails to take into account the interdependency of rights and restraints necessary in an organized society. The courts seem to have no difficulty in recognizing that, though we are assured protections in the rights of life and liberty, and in persons and property, even those basic rights are limited when they infringe upon the reciprocal rights of other individuals, or when they are superseded by higher necessities for the peace, good order and welfare of the public. E. g., even the most fundamental, the right to life, has its limitations in the event of war, or other exigent circumstances. Similarly, the rights of personal action, or use of property, are limited when the exercise thereof infringes upon the rights or safety of other individuals or of the public.

It should be realized that a wholesome moral atmosphere is just as important to the general health and welfare as are the protections of persons and property; and that this requires protection of normal sensibilities and the human psyche, particularly in the young, from scarring or injury by the harmful and wrongful conduct of others. It is for these reasons that we think the position is wholly untenable that freedom of speech is any more absolute than any of the other basic freedoms. It is necessarily subject to similar limitations and controls; and this includes reasonable and proper restraints upon the publication and dissemination of pornography and obscenity.⁴ That is the purpose of the statutes under attack.

It is to be acknowledged that because the subject is the intangible one of thought and expression, difficulty is encountered in drafting statutes with precision and definiteness. It is especially difficult to satisfy those whose desire and purpose is to flout and defy the law. It is usually in such circumstances that. problems arise where lucre lures men to engage in conduct which tends to undermine and destroy the moral fibre of their fellowmen and the fabric of society to which they cry for protection of their liberties to carry on their nefarious trade. But fortunately the law makes no such demand. What it does require is that a statute be sufficiently clear that persons of ordinary intelligence, who desire to know what the law is and to abide by it, can understand what is required of them.⁵

In determining whether that test is met the courts should take into consideration the difficulties involved in attempting precise description of antisocial conduct of the nature here in question; and should view the statute in the light of its total context and purpose as applied to the offense being dealt with. This, the same as all legislative acts, should be given the presumption of constitutionality and should not be declared unconstitutional for vagueness unless it appears beyond a reasonable doubt that it is so unclear and unfair that it would be an imposition upon law abiding citizens.⁶

Also important to be considered as pertaining to the problem in this case, is the principle that no one should be entitled to challenge a statute and have it declared void because it may unjustly affect someone else,⁷ but could properly do so only if his own rights are adversely affected. The exhibits in evidence are of such a nature that, to put it mildly, no one with even the barest modicum of a sense of decency, would regard as being anything other than the rawest of obscenities. In view of the fact that the defendants do not deny this, they could be in no way adversely affected by the twilight zones if any such did exist in this statute.

We revert to our Utah law in the light of what has been said above. It requires a unanimous finding by a jury, or by the court, beyond a reasonable doubt that the material’s “predominant appeal is to prurient interests” and that it goes “substantially beyond customary limits of candor in the description or representation of nudity, sex, or excretion”; and that this be determined by “applying contemporary community standards.” It is our judgment that that statute is sufficiently specific and meaningful to meet the requirement stated above: that persons with an ordinary sense of decency and morality, desiring to know what the law is and abide by it, would have no difficulty in understanding what transgresses those requirements; and particularly, that these defendants would have no difficulty in understanding that the exhibits in this case are within that prohibition. Our conclusion herein is in harmony with and finds support in the decisions of the courts of last resort in a number of our sister states with statutes practically the same as our own.⁸

For the reasons stated herein, it is our opinion that the statutes under attack are sufficiently clear with respect to the offense for which the defendants were charged and convicted that we are not persuaded to disagree with the judgment of the trial court in refusing to rule that the statute is unconstitutional and reverse these convictions. Accordingly, they are affirmed. No costs awarded.

HENRIOD, C. J., concurs in the result.

1 . As permitted by Utah Constitution, Art. VIII, See. 9.

2 . That the United States Supreme Court has itself previously held that the Fourteenth Amendment does not make the First Ten Amendments applicable to the states see Twining v. N. J., 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Presser v. Ill, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678.

3 . 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. In that case and a number of similar cases decided at the same time the United States Supreme Court set forth advisory guidelines; See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200 Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500, and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513, all decided June 21, 1973, as was Miller.

4 . Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ; and cases cited in footnote 3.

5 . See State v. Packard, 122 Utah 369, 250 P.2d 561.

6 . See Newcomb v. Ogden City Public School, 121 Utah 503, 243 P.2d 941.

7 . See Greaves v. State (Utah 1974), 528 P.2d 805; Walgreen Co. v. State Board of Equalization, 70 Wyo. 193, 246 P.2d 767; 16 Am. Jur.2d, Constitutional Law, See. 119; but also cf. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).

8 . People v. Enskat, 83 Cal.App.3d 900, 109 Cal.Rptr. 433 (1973); Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973); Sail v. Commonwealth ex rel. Sohroering, 505 S.W.2d 166 (Ky.1974); People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973); Price v. Commonwealth, 214 Va. 490, 201 S.E.2d 798 (1974).