The PEOPLE v. Butler

275 N.E.2d 400, 49 Ill. 2d 435, 1971 Ill. LEXIS 334

• Court: Illinois Supreme Court
• Decided: September 30, 1971
• Docket: 43771
• Status: Published

Opinions

Mr. Justice Schaefer

delivered the opinion of the court:

On. April 16, 1970, a jury in the circuit court of Vermilion County found the defendants, Jack A. Butler and Jack A. Butler Enterprises, guilty of the offense of obscenity for exhibiting the motion picture “Vixen.” Jack A. Butler Enterprises was fined $1000; Jack A. Butler was fined $500 and sentenced to one year’s probation. Of the numerous issues, some constitutional and some procedural, that have been raised by the defendants on this direct appeal, we find it necessary to consider only one.

The jury viewed the film, and numerous witnesses expressed their opinions as to whether or not it is obscene. There was testimony that the film had been exhibited in cities and towns throughout the State including Chicago, Peoria, Rockford, Kankakee, Aurora, Waukegan, Elgin, Danville, Champaign, Decatur, Bloomington, Lincoln, Galesburg, Havana, Rochelle, North Chicago, LaSalle, Streator, Villa Grove, Macomb, Earlville, Pekin, Tuscola, Canton, Pontiac, Chicago Heights, Freeport, DeKalb, Savanna, Alton, and Chicago suburbs. The business records of defense witnesses showed that since February of 1969, the film had been exhibited in 42 towns and cities throughout the State in 62 different theatres for a total of 336 weeks. The showings at individual theatres varied from one to 43 weeks. Both the distributor of the film and the defendants’ manager testified that there had been no problems in connection with the exhibition of the film.

The jury was instructed that “in determining whether or not a movie is obscene, the jury must consider whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” No specific instruction was given to the jury as to the scope or breadth of the “community” by whose contemporary standards the alleged obscenity of the film was to be judged. During the course of the trial, however, both the State’s Attorney and the trial judge indicated, in the presence of the jury, that the film could be found obscene if it offended the contemporary community standards of Vermilion County. That position was reiterated by the trial judge when he denied the defendants’ post-trial motion for judgment notwithstanding the verdict, on the ground that the evidence could support the jury’s determination that the film “did not comply with the contemporary community standards of Vermilion County.”

In Roth v. United States (1957), 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304, the United States Supreme Court held that the test for determining obscenity is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” (354 U.S. at 489, 1 L. Ed. 2d at 1509.) The opinion in this case, however, did not identify the exact community whose standards are to be applied in determining whether the dominant theme of the material appeals to prurient interest. In the subsequent case of Jacobellis v. Ohio (1964), 378 U.S. 184, 12 L. Ed. 2d 793, 84 S. Ct. 1676, some of the justices stated that a national standard was constitutionally required; others favored local standards; and still others found it unnecessary to confront the issue, because, in their opinion, the first amendment prohibits all laws regulating what may be depicted in motion pictures. A similar difference of opinion exists among the legal commentators. Compare, e.g., Lock-hart & McClure, Censorship of Obscenity: The Developing Constitutional Standards (1960), 45 Minn. L. Rev. 1, 108-114; with Note, Constitutional Law — Deprivation of Personal Rights — Possessing and Exhibiting Film — Evolution of an Obscenity Standard (1965), 16 W. Res. L. Rev. 780, 782-84; with O’Meara & Shaffer, Obscenity in the Supreme Court: A Note on Jacobellis v. Ohio (1964), 40 N.D. Law. 1.

It unnecessary for us to decide, however, whether a national standard is constitutionally required. Subsection (c) (4) of our statute regulating obscenity relates to the admissibility of evidence and speaks of the “degree, if any, of public acceptance of the material in this State * * (Ill. Rev. Stat. 1969, ch. 38, par 11 — 20(c) (4) (emphasis supplied) ; cf. Model Penal Code (1962), Proposed Official Draft, p. 239.) In our opinion, the statute contemplates the application of a statewide standard, and not a standard that varies from county to county. (Cf. People v. Sikora (1965), 32 Ill.2d 260, 264-5.) Accordingly, the cause must be remanded for a new trial.

The judgment of the circuit court of Vermilion County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.