Rabe v. Washington

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Rabe v. Washington
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued February 29, 1972
Decided March 20, 1972
Full case nameWilliam Rabe v. State of Washington
Citations405 U.S. 313 ( more )
92 S. Ct. 993; 31 L. Ed. 2d 258
Case history
PriorState v. Rabe, 79 Wash. 2d 254, 484 P.2d 917 (Wash. 1971).
Holding
A state may not criminally punish a drive-in theater manager for violating an obscenity law if the statute has not given fair notice that the location of the theater was an element of the offense.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas  · William J. Brennan Jr.
Potter Stewart  · Byron White
Thurgood Marshall  · Harry Blackmun
Lewis F. Powell Jr.  · William Rehnquist
Case opinions
Per curiam
ConcurrenceBurger, joined by Rehnquist
Laws applied
U.S. Const. amends. I, VI, XIV

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby . Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

Contents

Obscenity law

The First Amendment puts protection for expressive content in terms that are both sweeping and absolute: "Congress shall make no law... abridging the freedom of speech, or of the press" [1] Despite this broad protection, the roots of U.S. attempts to legally suppress obscenity extend back to the English common law offense of obscene libel and censorship of stage plays by the Master of the Revels. [2]

American definitions of obscene material were variable and sporadic until 1879, when the test adopted in the English case Regina v. Hicklin (1868) was used in the prosecution of D. M. Bennett. This test regarded all material tending "to deprave and corrupt those whose minds are open to such immoral influences" as obscene, regardless of its artistic or literary merit. This same test was adopted by the United States Supreme Court in Rosen v. United States , 161 U.S. 29 (1896). Under this test, works such as Honoré de Balzac's Contes Drolatiques, Gustave Flaubert's Madame Bovary , James Joyce's Ulysses , [lower-alpha 1] and D. H. Lawrence's Lady Chatterley's Lover had all been subject to suppression under the federal Comstock Laws.

In the 1957 case Roth v. United States 354 U.S. 476 the Supreme Court created a new, stricter definition of obscene material as media where "...to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." [4] This definition repudiated the former practice of finding the most shocking passages and presenting them out of context. The new definition led to much confusion, however, over what terms such as "contemporary community standards" meant in practice. [5]

In 1966, a trio of cases ( Memoirs v. Massachusetts 383 U.S. 413, Ginzburg v. United States 383 U.S. 463 (1966), and Mishkin v. New York 383 U.S. 502 (1966)) provided the Court with an opportunity to create more clarity on these points. These three cases resulted in no less than fourteen separate opinions so that lower courts were left in even greater confusion on what constituted obscenity. [6] Justice Harlan even wrote in dissent that: "...no person, not even the most learned judge, much less a layman, is capable of knowing in advance... whether certain material comes within the area of "obscenity" as that term is confused by the Court today." [7]

Prior history

The movie Carmen, Baby was an American-German-Yugoslav romantic drama based on Prosper Mérimée's novella Carmen . The film's director Radley Metzger had begun his film career importing titillating films from Europe. Metzger's new film "...walk[ed] a fine line by keeping his films suggestive but not descending fully into explicit hard-core content." [8] The Supreme Court would later note it contained: "sexually frank scenes but no instances of sexual consummation are explicitly portrayed." [9] : 314 

Carmen, Baby was playing at the Park Y Drive-In [10] on 28 August 1968 while a city police officer watched from outside the fence. [8] The following night, the officer returned to watch "almost the entire film" in company with the city attorney. [11] : 261  Rabe was arrested and two reels of the film were seized as evidence. In Richland District Justice Court [lower-alpha 2] he was convicted of "wrongfully and unlawfully caus[ing] to be exhibited an obscene, indecent and immoral show." He appealed to the Benton County Superior Court [lower-alpha 3] and a second trial was held. Rabe argued that under Roth, he could only be convicted if the film as a whole was devoid of artistic merit. The Superior Court did not find the picture was obscene in its entirety but instead that, "Individual portions or scenes of the movie ... are obscene and to passing motorists or persons and residents outside the theatre those individual scenes become a movie by themselves." [11] : 256  The statute Rabe was convicted of violating made it a gross misdemeanor to distribute "any...motion picture film...which is obscene" but made no mention of the time or place being a factor in the offense. [lower-alpha 4]

Rabe appealed his conviction, eventually to the Washington Supreme Court. He argued that the trial courts had used an incorrect definition of obscenity. Rabe argued that Roth required the courts to consider the movie as a whole and that the lower courts should not have ruled that scenes taken out of context were obscene to those outside the theater.

The Washington Supreme Court began by saying that they were as confused about what constituted obscenity as anyone else: "...our resolution of the challenge must necessarily be guided by the United States Supreme Court's troubled and often confusing explication of what expression constitutes obscenity and what expression is entitled to the protective liberties of the federal constitution's First Amendment. Unfortunately, that court's attempt in Roth to define obscenity vel non [lower-alpha 5] has continued to disappoint and confuse the courts, commentators and community alike." [11] : 262  They then concluded that, if the film had been seen only by consenting adults in a regular theater it was not wholly devoid of redeeming value and would probably not be obscene. Since the Park Y Drive-In Theater's screen had twelve to fifteen homes and a major street within viewing distance, however, the Court found that it was obscene for those who had "lurid images" inflicted into the normal course of their daily lives. Rabe's conviction was therefore affirmed.

Decision

The Supreme Court's opinion was delivered as a per curiam one; meaning that it was the opinion of the Court acting as a collective body and not one Justice's opinion. Chief Justice Warren Burger authored a concurrence opinion, joined by Justice William Rehnquist. The majority opinion avoided the obscenity issue, instead accepting the Washington Supreme Court's determination that the film did not meet the Roth definition of obscene. The Court noted that neither context nor location were part of the crime Rabe supposedly committed: "[Rabe's] conviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating." [9] : 315  Rabe had no notice that showing the same film in an indoor theater was permissible but that showing it in a drive-in was not. Burger's concurrence agreed on this question but indicated that such outdoor showings might be considered public nuisances. The Court therefore reversed his conviction.

Effects of decision

This judgment became part of the common law doctrine that the Sixth Amendment applies to the states. It extended the holding of In re Oliver , 333 U.S. 257 (1948) that the right to notice in the Sixth Amendment of accusations protected defendants in state criminal courts.

Burger's point on public nuisances was later an issue in Erznoznik v. City of Jacksonville 422 U.S. 205 (1975).

The Court's decision avoided the obscenity issues that had been briefed by the parties. Enforcement of obscenity laws therefore continued to be erratic or abandoned completely. [12] Attempts to clarify the Roth standard would have to wait until Miller v. California 413 U.S. 15 (1973) and Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973). [12]

The laws of Washington State were later revised to define "erotic material" instead of obscene media and to generally limit penalties to persons who distributed that type of material to minors. [13]

See also

Notes

  1. ↑ Joyce's work is famously oblique, which one commenter said "made an obscenity judgement a feat of imagination." [3] Even New York Society for the Suppression of Vice Executive Secretary John S. Sumner, who filed the complaint, perhaps understandably missed "the most scandalous aspect" of the passage on which the book was found obscene: that Leopold Bloom is masturbating while watching Gerty McDowell on the beach: "O sweety all your little white I made me do we too naughty darling." [3]
  2. ↑ In the Washington State court system, District Courts generally dealt with misdemeanors, infractions and small-claims cases.
  3. ↑ Superior Courts were trial courts of general jurisdiction rather than appellate courts but were also the first step in appealing misdemeanors.
  4. ↑ Revised Code of Washington 9.68.010 read at the time: "Every person who -- (1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or (2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene; Shall be guilty of a gross misdemeanor."
  5. ↑ Latin for "or not". Refers to an issue that a court wishes to indicate is in doubt.

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

<span class="mw-page-title-main">Comstock laws</span> 1873 U.S. laws prohibiting the dissemination of obscene or contraceptive material

The Comstock laws are a set of federal acts passed by the United States Congress under the Grant administration along with related state laws. The "parent" act was passed on March 3, 1873, as the Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. This Act criminalized any use of the U.S. Postal Service to send any of the following items: obscenity, contraceptives, abortifacients, sex toys, personal letters with any sexual content or information, or any information regarding the above items.

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.

Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers, which the state had deemed obscene.

Stanley v. Georgia, 394 U.S. 557 (1969), was a U.S. Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.

The Hicklin test is a legal test for obscenity established by the English case R. v Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.

The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. It has been a common expression since at least the 19th century. A similar phrase appears in A. Conan Doyle's "The Hound of the Baskervilles," in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Kois v. Wisconsin, 408 U.S. 229 (1972), was a ruling by the U.S. Supreme Court in the case of the obscenity conviction of Milwaukee editor-publisher John Kois, whose underground newspaper Kaleidoscope had published two small photographs of pictures of nudes and a sexually-oriented poem entitled "Sex Poem" in 1968. The Supreme Court ruled that, in the context in which they appeared, the photographs were rationally related to a news article which they illustrated and were thus entitled to Fourteenth Amendment protection, and that the poem "bears some of the earmarks of an attempt at serious art", and thus was not obscene under the Roth v. United States test. In the words of the concurring opinion of Justice William O. Douglas, "In this case, the vague umbrella of obscenity laws was used in an attempt to run a radical newspaper out of business and to impose a two-year sentence and a $2,000 fine upon its publisher. If obscenity laws continue in this uneven and uncertain enforcement, then the vehicle has been found for the suppression of any unpopular tract. The guarantee of free expression will thus be diluted and in its stead public discourse will only embrace that which has the approval of five members of this Court."

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene within the meaning of 18 U.S.C. § 1461. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable."

An obscenity is any utterance or act that strongly offends the prevalent morality and social politics of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be used to indicate strong moral repugnance and outrage, vile, vigilance in conservation, or revenge. In expressions such as "obscene profits" and "the obscenity of war," ; misdirection. As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profanity, or the exploited child, human being or situation on display. It may also relate to a fear quotient in the public area affecting trend.

Ginsberg v. New York, 390 U.S. 629 (1968), was a United States Supreme Court case in which the Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.

Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book's content, and thus violated the freedom of the press guaranteed in the First Amendment. Smith v. California continued the Supreme Court precedent of ruling that questions of freedom of expression were protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. It also established that in order for one to be criminally liable for possession of obscene material, there must be proof of one's knowledge of the material.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

Heller v. New York, 413 U.S. 483 (1973), was a United States Supreme Court decision which upheld that states could make laws limiting the distribution of obscene material, provided that these laws were consistent with the Miller test for obscene material established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Heller was initially convicted for showing a sexually explicit film in the movie theater which he owned, under New York Penal Law § 235.0 which stated that and individual “is guilty of obscenity when, knowing its content and character, he 1. Promotes, or possesses with intent to promote, any obscene material; or 2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity."

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

References

  1. ↑ "The Bill of Rights: A Transcription". America's Founding Documents. The U.S. National Archives and Records Administration. November 4, 2015. Retrieved July 6, 2017.
  2. ↑ Berbysse, S.J., Edward J. (March 2017). "Conflict in the Courts: Obscenity Control & First Amendment Freedoms". The Catholic Lawyer. 20 (1).
  3. 1 2 Birmingham, Kevin (2014). The most dangerous book: The battle for James Joyce's Ulysses . New York: The Penguin Press. ISBN   978-1594203367 . Retrieved October 23, 2017.
  4. ↑ Roth v. United States , 354U.S.476 , 489(U.S.1957).
  5. ↑ Shugrue, Richard E.; Zieg, Patricia (1974). "An Atlas for Obscenity: Exploring Community Standards" (PDF). Creighton Law Review. 7: 157. Retrieved January 16, 2018. In attempting to define obscenity the Court has unfortunately failed to provide adequate guidelines for determining whether a work is obscene and has thus left inferior courts in a state approaching mass confusion.
  6. ↑ Sebastian, Raymond F. (November 1966). "Obscenity and the Supreme Court: Nine Years of Confusion". Stanford Law Review. 19 (1): 167–189. doi:10.2307/1227052. JSTOR   1227052.
  7. ↑ Ginzburg v. United States , 383U.S.463 , (dissent) 480-481(U.S.1966).
  8. 1 2 Getzler, Jeremy (2017). Film Censorship in America: A State-By-State History. Jefferson, North Carolina: McFarland & Company, Inc., Publishers. ISBN   9781476669526 . Retrieved October 23, 2017.
  9. 1 2 Rabe v. Washington, 405U.S.313 (U.S.1972).
  10. ↑ "Island-View Drive-In". Cinema Treasures. Retrieved October 26, 2017.
  11. 1 2 3 State v. Rabe, 79Wash. 2d254 (Wash.1971).
  12. 1 2 Clor, Harry (1974). "Obscenity and the First Amendment: Round Three". Loyola of Los Angeles Law Review. 7 (2): 207.
  13. ↑ "Chapter 9.68 RCW - Obscenity and Pornography". Revised Code of Washington (RCW). Washington State Legislature. Retrieved October 25, 2017.
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